Supreme Court Nominee Brett Kavanaugh on the Separation of Powers

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This entry is part 2 of 5 in the series Supreme Court Nominee Brett Kavanaugh

Brett Kavanaugh on Chevron Deference, the scope of presidential power, and the Supreme Court as the last line of defense in the separation of powers

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(September 25, 2018) The Constitution requires three branches of government. This separation of powers would prevent tyranny. In reality, however, they also have to work together. And there’s the rub. No matter who becomes the next Supreme Court Justice, these issues play a central role.

Congress — the legislative branch — passes laws and the executive branch enacts them, and if something doesn’t work, folks sue via the judiciary branch. During his Supreme Court confirmation hearing, nominee Brett Kavanaugh explained that the fact that something comes before the court sometimes means that the statute needs to be changed, that it doesn’t work. Judges and justices can make clear in their opinions which issues Congress needs to be aware of. And then it’s back to the legislative branch.

Chevron Deference

Chevron Deference — a.k.a. Chevron Doctrine or Chevron Test — came up a lot, and it’s clear why. It speaks directly to the separation of powers between the three branches of government. When the EPA came under a new leadership after President Reagan succeeded President Carter, it lowered its standards for permit requirements for polluters, claiming that was okay and didn’t change anything in the Clean Air Act as long as the overall pollution didn’t increase. Or something like that. The environmental protection group the Natural Resources Defense Council challenged the new interpretation of the Clean Air Act in court. The lower courts ruled in favor of the Natural Resources Defense Council, but Chevron appealed and it went to the Supreme Court.

So the question before the Court was:  To what degree could administrative agencies — in this case the EPA — interpret how to enact statutes written by Congress, and to what degree, if any, should the courts be the place to duke out this battle between the legislative branch that writes a law (Congress) and the executive branch (a government department) that has to enact it?

In Chevron v. Natural Resources Defense Council, the Supreme Court decided that in cases where Congress has not clearly and specifically written in a statute how it should be enacted, or where the writing is ambiguous (statutory ambiguity), the courts should look to see if the executive agency charged with administering the law has applied a reasonable interpretation of the statute. If an agency’s interpretation is reasonable, even if it’s not the most reasonable interpretation, it stands.  This was already more or less how things worked in cases of statutory ambiguity, but Chevron clearly formulated it and it quickly became precedent for many other cases involving statutory ambiguity.

There can be a tension between politicians in Congress who write laws, and administrative agencies that then interpret them, which often involves creating regulations. Or getting rid of regulations. When a Democrat is president, he or she heads all the government agencies with like-minded people, and an agency like the EPA will likely create as many regulations to protect the environment as it can. Which will give the Republicans the heebie-jeebies. On the other hand, when a Republican is president, he or she replaces all those Democrat heads of adminstrative agencies with Republicans, and the head of the EPA will most likely be someone who starts doing away with as many regulations as possible. Which drives the Democrats to distraction.

On Day Three of the hearing, Senator Lee (R-UT) brought up that Judge Kavanaugh had been accused of leading the attempt to delete administrative agencies, and he gave him the opportunity to clarify. Kavanaugh said that his record shows that he’s ruled both against and in favor of government agencies, and that he sees Chevron as a ruling for reasonable agencies. Which is interesting, because he seems to make the leap here from Chevron being a test to determine if an agency has a reasonable interpretation of a law, to Chevron being a test to determine if the very existence of an agency itself is reasonable or not.

Senator Flake (R-AZ) also brought up Chevron on Day Three. He pointed out that Chevron Deference can not only stretch the meaning of the law by leaving the details up to the administrative agencies, it in effect moves law-making to the other branches — to the executive branch by letting the agencies hammer it out, or to the judiciary branch by letting the courts determine if a statute is ambiguous or not. And Kavanaugh added that there is no neutral standard for statutory ambiguity, for determining how much ambiguity is enough to say that a statute is ambiguous. So two justices could disagree on the level of ambiguity, and that’s a problem.

On Day One, Senator Sasse (R-NB) complained that the Supreme Court has become the arena of political debate about legislature because the legislative branch moves their responsibility “on to the next branch, to the alphabet-soup agencies,” and that a lot of this has been happening for a century. Congress gives permission to departments to write legislation that Congress doesn’t understand, and the rules often include lines like that the department will ‘make rules’ to carry out laws. He also argues that giving away power in this way helps incumbency, because if you don’t legislate, you can’t be unpopular. However, the people are cut out of the process when the legislature is written by department bureaucrats who can’t be held to account. When Congress is neutered, when the bureaucrats — who can’t be fired — are the legislators, the Supreme Court becomes the political battleground, because it’s the only way the people can fight legislature that’s created in a bureaucracy. Sure, he’s got a point.

Senator Kennedy (R-LA) felt that Chevron Deference encourages misbehavior. A congressman can get legislation through even if the Senate doesn’t approve it, by having an administrative agency write it with lots of statutory ambiguity, and then a judge calls it ambiguous “and then we can do whatever we want to do”. Kavanaugh said that he had encountered real-world examples of this legislative branch shift of power to the executive branch, and that there are several ways to avoid that. One is nationwide injunctions: one federal district judge can enjoin a law or regulation for the entire country even if no other judge agrees. (What! They can do that?! I must find out more.) He didn’t get around to the other ways to avoid shifting lawmaking to the executive branch, because Kennedy moved on to something else.

Senator Crapo (R-ID) let Kavanaugh continue, though. He said that since 1999 a Major Questions Doctrine has been in place that limits Chevron somewhat. For major-cases rule making, deference to agencies does not apply, and we expect Congress to speak clearly if it wants to assign rule-making of significance to administrative agencies.

It’s interesting that it was only the Republicans who seem to have such a big problem with Chevron Deference. Or more generally, with the fact that government agencies hash out the details of a statute passed by Congress. What do they expect? Sure, in theory Sasse had a point, that the bureaucrats aren’t elected, but you also have to be practical. Congress is made up of politicians, representatives of the people (in theory anyway), who deal with every issue under the sun. So they write laws: clean the air, prevent food poisoning, educate the kids. It would be unreasonable to expect them to come up with all the details. There are three groups who are capable of doing that: government agencies, public interest groups and special interest groups. The last two should be heard, but in the end it makes sense that the administrative agencies fill in the details of the laws Congress passes. These agencies can hire experts in each field so that the laws are enacted in a way that makes sense. Why am I even explaining this?

The Scope of Presidential Power

Of course the other big issue regarding the separation of powers between the three branches of government facing the committee was that we have a Republican-majority Congress, a Republican president and a Republican-majority Supreme Court, so if President Trump needs to be indicted or investigated or subpoenaed, the will on the part of the government to do that is already barely there.

Senator Flake quoted Trump’s tweet to Attorney General Jeff Sessions, in which he chewed him out for finding two Republican congressmen guilty of corruption right before the midterms. He asked Kavanaugh if a president should be able to pressure the judiciary branch into doing his bidding.  Kavanaugh replied that Congress passed plenty of laws that guarantee that the president doesn’t act inappropriately. But Trump did act inappropriately and Congress did nothing. He has no respect for the three branches of government, or no understanding that his place is the executive branch only, and nobody tells him he’s abusing his presidential power. There are no repercussions.

Kavanaugh himself said on Day One that the Supreme Court is the last line of defense in the separation of powers between the three branches of government. Nevertheless, the Democrats’ biggest concern is his stance on presidential power. According to Peter Shane, a law professor at Ohio State University and a witness on Day Four, said that Judge Kavanaugh explicitly adheres to the constitutional philosophy known as the strong Unitary Executive Theory, which would give the president total control over the actions or decisions of any executive branch official. If it became law, Congress would be unable to put any limits on the president’s supervisory power over an independent prosecutor. (Adherents to the weak Unitary Executive Theory believe the administrative agencies should fall under Congress. There are also those who would like to see a plural executive, like some other countries and some American states have, but that would require an amendment to the Constitution.)

Senator Blumenthal (D-CT) laid out the Democrats’ concern: the president who nominated Kavanaugh is characterized as an unindicted co-conspirator in a criminal case. Some of the issues the Supreme Court may be confronted with in the near future are Trump’s refusal to comply with a subpoena, or meddling in or preventing his own indictment. Would Kavanaugh recuse himself in those cases? He wouldn’t say.

Senator Sasse asked Kavanaugh what the limits are to executive power. His answer was a standard civics list: The president’s elected. He serves a term. He presides over only one of the three branches of government. He doesn’t have the absolute power to make laws, Congress does that. He doesn’t have the power to adjudicate disputes, the judiciary does that. Even as commander in chief he is not above the law; Congress has substantial power in the war powers arena. The president does not have the ability to unilaterally take the country into war. The president does not have unilateral appropriations powers. And he’s not above criminal law, because “it’s foundational in the Constitution that nobody is above the law”.

In the past Kavanaugh wrote that he believed a president should be able to fire a special counsel. That would include a special investigator like Mueller. But he has also pointed out that Humphrey’s Executor is Supreme Court precedent for not firing him, and that Congress put an extra rule in place after Nixon fired the first special prosecutor investigating him, so that he couldn’t fire the second one. So, if Trump decided to fire Mueller, would Kavanaugh’s (past) belief that the president should have broad executive power weigh more, or would his love of precedent make him look to Humphrey’s Executor and U.S. v. Nixon and decide that the president can’t fire the people who are investigating him? And which people are we talking about? Because if he is allowed to fire his first special prosecutor and he then appoints another, and he’s luckier than Nixon and the next one does do his bidding, it doesn’t matter if Congress creates a special regulation preventing Trump from firing the second person, because he won’t have to.

Would Kavanaugh uphold a grand jury subpoena for information from Trump?  Again, it depends on what wins out, his views on broad presidential power or U.S. v. Nixon. But even that is not clear cut, because, as Senator Whitehouse (D-RI) pointed out, every time Kavanaugh mentioned U.S. v. Nixon, he made sure to say that it is precedent for a trial jury subpoena. He wouldn’t say if it is useful precedent for a grand jury subpoena.

Does Kavanaugh believe a sitting president can be indicted? He said it has been the Justice Department’s policy for 45 years that a sitting president shouldn’t be indicted, but that it’s policy, not law or precedent. He also said that not indicting a sitting president doesn’t mean the president is above the law, or immune to prosecution, just that indictment would be deferred until after his term in office is over. But that sounds like rationalizing to me. And later he seemed to contradict his own claim that the Justice Department’s policy is nothing more than that. I’m paraphrasing part of a back-and-forth with Senator Whitehouse on Day Three here:

Whitehouse: There has never been a statute or a law determining indictment of presidents, correct? Kavanaugh: There is no law that Congress has ever passed, any law that protects the president from criminal investigation or indictment. Whitehouse: So then there would have to be a constitutional law about it, right? Kavanaugh: No, the Department of Justice can have a law about it. Whitehouse: It would be a real stretch to call department policy law. Kavanaugh: Internal regulations are a sort of law.

So which is it — are the Justice Department policies just policies or are they “a sort of law”?

Then there’s Trump’s claim that he can pardon himself. I suppose this one was too ludicrous to waste time on. At least, I hope that’s the reason it wasn’t really addressed. I would assume that if nobody is above the law, not even the president, that that means he can’t pardon himself. But, as the above shows, it’s impossible to know — based on the hearing — how Kavanaugh would rule.

This post is Part 2 in the series Supreme Court Nominee Brett Kavanaugh. Here is the next one.


  • Chevron Deference. Wex Legal Dictionary. Legal Information Institute. Cornell Law School.
  • Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Wikipedia.,_Inc._v._Natural_Resources_Defense_Council,_Inc.
  • Graham, David A. The Proud Corruption of Donald Trump (Politics) The Atlantic, September 4, 2018.
  • Humphrey’s Executor v. United States, 1935. Oyez. Justia Supreme Court Center.
  • Major Questions Doctrine. Conservapedia.
  • Supreme Court Nominee Brett Kavanaugh Confirmation Hearing, Day 1, Part 1. C-SPAN, September 4, 2018.
  • Day 1, Part 2. C-SPAN, September 4, 2018.
  • Day 2, Part 1. C-SPAN, September 5, 2018.
  • Day 2, Part 2. C-SPAN, September 5, 2018.
  • Day 2, Part 3. C-SPAN, September 5, 2018.
  • Day 2, Part 4. C-SPAN, September 5, 2018.
  • Day 2, Part 5. C-SPAN, September 5, 2018.
  • Day 3, Part 1. C-SPAN, September 6, 2018.
  • Day 3, Part 2. C-SPAN, September 6, 2018.
  • Day 3, Part 3. C-SPAN, September 6, 2018.
  • Day 3, Part 4. C-SPAN, September 6, 2018.
  • Day 3, Part 5. C-SPAN, September 6, 2018.
  • Day 3, Part 6. C-SPAN, September 6, 2018.
  • Day 3, Part 7. C-SPAN, September 6, 2018.
  • Day 4, Part 1. C-SPAN, September 7, 2018.
  • Day 4, Part 2. C-SPAN, September 7, 2018.
  • Unitary Executive Theory. Wikipedia.
  • United States v. Nixon, 1974. Oyez. Justia Supreme Court Center.



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