Promoted from the diaries by streiff. Promotion does not imply endorsement.
President Trump is aiming for July 9 to announce a U.S. Supreme Court nominee. There are 25 known contenders, and you can find lots of info about each of them at a website I set up: www.tifis.org/Trump.html.
The most recent scuttlebutt is that there are two main contenders, plus one dark horse. The two main contenders and the dark horse are (allegedly) U.S. circuit judges Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge, respectively. Did I mention that you can find info about each of them at www.tifis.org/Trump.html?
Now I want to briefly critique Judge Kavanaugh, who is supported by an “Army” of lawyers, and appears to be the frontrunner. The following comments are a bit critical, but this should not be taken as opposition to Kavanaugh, because the main question should always be “Who is best?” rather than “Who is perfect?”
That said, I want to point now to two judicial opinions of his that I find concerning: Seven-Sky v. Holder (2011) which sheds light about how much of a textualist Judge Kavanaugh is (textualism, of course, is a leading form of originalism), and In Re Aiken County (2013) which illustrates how he deals with separation of powers and executive branch discretion as a matter of text and original meaning. Let’s briefly consider the two cases in that order.
The Seven-Sky case preceded the U.S. Supreme Court case upholding the ACA (“Obamacare”). In Seven-Sky, Kavanaugh dissented as to jurisdiction and therefore did not address the merits; he said the penalty for disobeying the individual mandate was a “tax” (or at least should be treated like a “tax”), and so he said the Anti-Injunction Act (AIA) denied the courts jurisdiction. The Supreme Court later unanimously disagreed, saying it was not a tax (and was not to be treated like a tax) for purposes of the AIA. Of course, one should not jump to the conclusion that the nine justices were correct while Kavanaugh was incorrect, but still this was a very big case that needs to be considered now.
The opinion of Chief Justice Roberts and the dissent of Justice Scalia agreed with each other on this point, and Scalia incisively said: “That the penalty is to be ‘assessed and collected in the same manner as taxes’ refutes the proposition that it is a tax for all statutory purposes, including with respect to the Anti-Injunction Act.” Scalia’s observation about the plain text in turn refutes Judge Kavanaugh’s assertion that, “If we are to give effect to the plain text of the statute, the Anti-Injunction Act must bar pre-enforcement suits challenging the Affordable Care Act’s penalties for failure to have health insurance.”
Okay, now on to In Re Aiken County. This case dealt with the scope of the Executive’s authority to disregard federal statutes. A few weeks later, his opinion occasioned much discussion at the Originalism Blog where I am a co-blogger (see Mike Ramsey on 08/16/2013 and 08/18/2013, Mike Rappaport on 08/20/2013, and me on 09/13/2013). The following year, Kavanaugh elaborated on his view in Aiken that a president can decline to execute laws he does not like, by exercising prosecutorial discretion as to private parties.
It is widely accepted that prosecutorial discretion has several facets including these: (1) presidents can exercise prosecutorial discretion as necessary due to limited prosecutorial resources provided by Congress; (2) presidents can also exercise prosecutorial discretion to not enforce a statute when they think the statute is unconstitutional; and (3) presidents can also exercise prosecutorial discretion on a case-by-case basis as a corollary to the pardon power provided that the offense has already been committed (i.e. provided that the president does not effectively give a license to go commit future offenses). It’s this last prong that Judge Kavanaugh would expand. He wrote: “The President may decline to prosecute or may pardon because of the President’s own constitutional concerns about a law or because of policy objections to the law, among other reasons”. He advocated “the power to decline to prosecute a violator of a law simply because of the President’s belief that the law is oppressive.”
This doctrine supported by Judge Kavanaugh would mark a very significant change in the law (see generally comments by Michael McConnell, Michael Dorf, John Yoo, Charles Krauthammer as well as George Washington (saying “it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to” that duty) and Thomas Jefferson (saying the Sedition Act was not merely unwise or oppressive but unconstitutional)). Therefore, it is well worth considering In Re Aiken County during this turbulent SCOTUS nomination season.
UPDATE (August 8, 2018): It’s come to my attention that Judge Kavanaugh revisited the subject of prosecutorial discretion in a 2016 piece for the Marquette Lawyer. He wrote, “I will admit that I used to think that I had a good answer to this issue of prosecutorial discretion: that the president’s power of prosecutorial discretion was broad and matched the power to pardon. But I will confess that I’m not certain about the entire issue as I sit here today.” I am glad that he reconsidered his previous position about prosecutorial discretion. Incidentally, in 2017, Judge Kavanaugh wrote some stuff about the First Amendment that I recently addressed (on July 22, 2018).