//  8/3/18  //  In-Depth Analysis

By Carolyn Shapirofounder and co-director of Chicago-Kent's Institute on the Supreme Court of the United States.

On July 9, 2018, President Donald Trump announced Judge Brett Kavanaugh as his nominee to replace Justice Anthony Kennedy on the Supreme Court. In brief remarks after the introduction, Judge Kavanaugh said very little about the law, but one comment stands out. While describing his experience teaching law school, he said: “For the past 11 years, I have taught hundreds of students, primarily at Harvard Law School. I teach that the Constitution’s separation of powers protects individual liberty, and I remain grateful to the dean who hired me, Justice Elena Kagan” (emphasis added). We don’t know why Judge Kavanaugh included that non sequitur about the relationship between separation of powers and liberty. Regardless of his intent, however, the statement points to important questions about Judge Kavanaugh’s particularly crabbed vision of liberty and its constitutional protections, his commitment to a concentration of powers in the presidency, and his views about the looming controversy about the constitutional validity of Robert Mueller’s investigation into the President and his campaign.

1.  Judge Kavanaugh’s one-sided view of liberty.

To explain Judge Kavanaugh’s views of liberty requires a brief detour into his recent dissent in PHH Corp. v. Consumer Financial Protection Bureau (CFPB). In short, PHH involved a constitutional challenge to the structure of the CFPB, an agency created by Congress after the 2008 financial crash to regulate financial products designed for individuals and families. Like the Federal Reserve Board and many other agencies that regulate the economy, the CFPB is an “independent agency.” This means that the President can fire its leadership only “for cause,” which insulates the CFPB’s economic policy work from short-term political considerations. Unlike many other independent agencies that have multi-member boards, however, the CFPB has a single director who is appointed by the President for a five-year term. PHH Corporation, unhappy about an enforcement action that the CFPB brought against it, challenged this aspect of the CFPB’s structure as violating the Constitution’s separation of powers.

Sitting en banc, the D.C. Circuit upheld the constitutionality of the CFPB. But Judge Kavanaugh dissented. (He also wrote the panel opinion that the full court overturned.) Judge Kavanaughopened his dissent with a striking first line: “This is a case about executive power and individual liberty.” Throughout the opinion, he emphasized that, in his view, our constitutional separation of powers exists to restrain the regulatory reach of the federal government, which he sees as a threat to liberty.

But Judge Kavanaugh’s views about liberty and how to protect it, as expressed in PHH, are notably one-sided. His concerns there are exclusively about the ways that the creation and enforcement of government regulations impede liberty; he focuses on how an “agency can infringe your liberty in some way – for example, by enforcing a law against you or by issuing a rule that affects your liberty or property…” Judge Kavanaugh’s folksy use of the second person here should not keep us from remembering what the CFPB was created to do: protect consumers from being misled or cheated by powerful, savvy financial institutions. As Judge Nina Pillard put it in her PHH majority opinion, “Congress understood that markets’ contribution to human liberty derives from freedom of contract, and that such freedom depends in part on market participants’ access to accurate information, and on clear and reliably enforced rules against fraud and coercion.” In other words, for some people, the CFPB might well provide more liberty.

You don’t have to think that the CFPB’s single-director structure is constitutional, or think that its regulatory decisions are wise, to find Judge Kavanaugh’s dissent troubling. Although he worries, as we all should, about the ways that regulation can impede liberty, he seems blind to the ways that regulation can be liberty-enhancing. Seeing laws only as liberty-constricting misses the point of “ordered liberty.”

Consider run-of-the-mill criminal laws. Certainly laws against murder or theft impede the liberty of those who want to murder or steal. They may also impede the liberty of those innocent people who are more likely than others to be deemed suspicious, sometimes for inappropriate reasons like race. But such laws also enhance the liberty of people who want to go about their lives without a constant threat of violence. The democratic and constitutional challenge in assessing laws is to strike the right balance, but Judge Kavanaugh seems to weigh only one side of the equation. As Mark Joseph Stern points out, for example, Judge Kavanaugh would have struck down Washington, D.C.’s ban on assault rifles. There, too, he expressed concern about the liberty of the direct subjects of the regulation—owners of assault rifles—but offered no such regard for the liberty of those who would have been protected from having their bodies ripped apart by the unique power of those weapons.

It doesn’t take much imagination to see what Donald Trump might find attractive about this way of thinking. To put it mildly, Trump is well-known for chafing at legal constraints. He promised the elimination of two regulations for every one enacted, and he has bragged repeatedly about his deregulatory agenda. Judge Kavanaugh may not always vote in favor of corporations and against regulations, but it’s hard to read PHH—and his one-sided ode to liberty as lack of law—and not see a heavy anti-regulatory perspective.

2. Liberty for some but not all.

Remarkably, however, Judge Kavanaugh’s view of liberty as protection against arbitrary or heavy-handed government intrusion does not extend to everyone. Compare his PHH and assault rifle dissents to his dissent in Garza v. Hargan. That case involved a 17-year-old undocumented immigrant, J.D. As an undocumented minor, J.D. was in the custody of the Department of Health and Human Services’ Office of Refugee Resettlement in a shelter in Texas. Shortly after she arrived in the United States, J.D. discovered that she was pregnant. She wanted an abortion. J.D. complied completely with Texas law governing access to abortion, including obtaining the judicial approval that Texas law mandates for a minor seeking an abortion without parental notification. Neither the federal government nor the shelter would be paying for the procedure or even transporting her.

All that J.D. needed from the government was approval to leave the shelter and be transported to the clinic by private parties. The government, however, refused to provide that approval. Although it conceded that J.D. had a constitutional right to obtain an abortion, the government argued that it was not imposing an unconstitutional “undue burden” because she could have an abortion if she either found a sponsor (much like a foster parent) or if “she surrendered any claim of legal right to stay here and voluntarily departed” the United States. The D.C. Circuit rejected these arguments. As Judge Patricia Millett pointed out in her statement accompanying the D.C. Circuit’s en banc order, the government had already been searching, unsuccessfully, for a sponsor for weeks. Further, J.D. might in fact have a legal right to stay in the United States due to the violence she was fleeing, and abortions are illegal in her home country.

Judge Kavanaugh, nonetheless, would have stayed the district court’s order requiring the government to allow J.D. to leave the shelter for the abortion, at least for another two weeks. Although he conceded (at least for purposes of the case) that J.D. had a constitutional right to an abortion, he would have imposed the delay ostensibly to give the government more opportunity to identify a sponsor for J.D. so that she could revisit her decision while in a “better place” than the shelter. Of course, the longer the pregnancy continued, the greater the risks of an abortion, the further she would have to travel to get to a doctor willing and able to perform it, and the greater the chance that she would reach the point in the pregnancy when Texas law would not allow the abortion at all. And this desire for J.D. to have a sponsor so she would be in a “better place” before obtaining an abortion was not even an argument that the government made. So not only would Judge Kavanaugh have allowed the government to interfere with J.D.’s liberty, but he was willing to do so on a basis that the government itself did not even argue. Judge Kavanaugh—a democratically unaccountable federal official—was willing to invent a rationale to restrict her access to health care he disapproved of.

So here is what was at stake in Garza: the federal government, acting with no valid statutory or regulatory authority, had taken what Judge Millett described as a “categorical position against abortion”—a procedure to which J.D. had a constitutional right. It is hard to imagine an individual less well-situated to resist regulatory overreach: J.D. was an undocumented minor living in a shelter controlled by the entity restricting her movements. Not only that, but unlike PHH Corporation, the liberty that J.D. sought to exercise – the right to decide whether to remain pregnant – is liberty expressly protected by Supreme Court precedent. The same cannot be said for the financial liberty that Judge Kavanaugh extolled in PHH Corp. Yet Judge Kavanaugh did nothing but invent new reasons to rule against J.D..

3.  Liberty and accountable government.

A final, and highly significant, aspect of Judge Kavanaugh’s remarks and his PHH dissent is what they tell us about how he might think about the constitutional validity of Robert Mueller’s investigation into Donald Trump and his campaign, and what that means for liberty. As I’ve explained, Judge Kavanaugh’s tribute to liberty in the East Room echoes the way he talked about liberty in PHH. And those passages of his PHH dissent relied heavily on Justice Scalia’s dissent in Morrison v. Olson.

In Morrison, the Supreme Court heard a challenge to the then-existing independent counsel law. That law provided for the judicial appointment – triggered by a preliminary investigation and request by the Attorney General – of an independent counsel to investigate and, where appropriate, prosecute high-level government officials. The law also provided for termination of the independent counsel only under limited circumstances.

In a 7-1 decision—Justice Kennedy did not participate—the Court upheld the independent counsel statute against a separation of powers challenge. Chief Justice Rehnquist wrote the majority opinion, and Justice Scalia was the lone dissenter. Justice Scalia’s dissent is a famously well-written opinion. (It includes the fantastic line, “But this wolf comes as a wolf.”). And it is revered by many conservatives for its articulate defense of the unitary executive and its explicit connection of separation of powers principles to liberty. But it was a dissent.

Nonetheless, in his PHH dissent, Judge Kavanaugh cited Justice Scalia’s dissent repeatedly as authority for the relationship he sees between executive authority and liberty. Not only that, but he appeared to give the dissent the force of law: “Recall, moreover, that the independent counsel experiment ended with nearly universal consensus that … Justice Scalia had been right back in 1988 to view the independent counsel system as an unwise and unconstitutional departure from historical practice and a serious threat to individual liberty.”

It’s true that Congress let the independent counsel law at issue in Morrison expire. And it’s true that the law came under significant criticism from the left as well as the right during the Clinton Administration—particularly following independent counsel Kenneth Starr’s investigation (in which, ironically, a young Brett Kavanaugh participated). But even if it is true that most people now agree that the independent counsel law was unwise—though Judge Kavanaugh cites no evidence for that claim—it is still a remarkable thing to cite a Supreme Court dissent’s constitutional analysis as legal precedent. (That use of a dissent as legal authority alone is worth some questions at Judge Kavanaugh’s confirmation hearing.)

Of course, even if it were true that Justice Scalia’s dissent had become law, that would not dictate the outcome of a challenge to the Mueller investigation. Robert Mueller is a special counsel, not an independent counsel, and he was appointed pursuant to Justice Department regulations that provide no role for the judicial branch. The separation of powers issues are different. But Judge Kavanaugh has suggested in a law review article that the President should be statutorily immunized not only from indictment but from all criminal and civil investigations while in office. In other words, he has already weighed in on at least some of the policy considerations that would arise in a constitutional challenge to Mueller’s investigation. And as Kevin Russell points out at SCOTUSblog, Judge Kavanaugh’s law review article contains “the beginning of structural constitutional argument” about presidential immunities. (There’s an on-line debate about what we can reliably conclude about Judge Kavanaugh’s views on this constitutional question.)

So here is the punch line: In the face of an administration riddled with conflicts of interest, self-dealing, and corruption, and despite the realistic possibility that the President and/or his closest advisors participated in a criminal conspiracy during the 2016 election campaign, Judge Kavanaugh chose, while standing next to the President, to refer to a vision of separation of powers that concentrates power in the President and may insulate him from meaningful accountability. Perhaps that choice was intended as a signal; perhaps not. Either way, it highlights Judge Kavanaugh’s troubling and one-sided view of liberty and how to protect it. Just as markets depend on reliable and full information, so does the public’s ability to demand accountability and action through our constitutional checks and balances. Our liberty depends on those features of our system of government operating well. It is not clear that Judge Kavanaugh agrees.


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