Brett Kavanaugh and the unitary executive

Critics of President Trump’s Supreme Court nominee Brett Kavanaugh have recently attacked him for 1) endorsing a supposedly radical theory of presidential power called a belief in the Unitary Executive; and 2) for seeming to call into question the U.S. Supreme Court’s 1974 opinion in the Watergate Tapes case United States v. Nixon and its 1988 decision in Morrison v. Olson.

I hate to break the news to those critics, but they are wildly wrong both about Kavanaugh and the theory of the unitary executive. I know a lot about this topic having co-authored a Yale University Press book in 2008 with University of Pennsylvania law professor, Christopher S. Yoo, entitled “The Unitary Executive: Presidential Power from Washington to Bush.”

{mosads}The theory of the unitary executive, as described in my co-authored book, is a theory of who has the executive power — the president — and not a theory of the scope of the executive power either in foreign policy or in domestic policy. There are some people who believe both that the President exclusively has the executive power and that the President has the prerogative powers of King George III in foreign and domestic policy but neither I nor Brett Kavanaugh fall into that category.

Former White House Counsel and later Attorney General Alberto Gonzales, had a “King George III” view of presidential prerogative powers, but Brett Kavanaugh and I do not. We simply think, as Justice Elena Kagan wrote in a splendid article in the Harvard Law Review that the president is the head of the executive branch of the government. This is a position that has been asserted by literally every president of the United States during their administrations in office.

Brett Kavanaugh has never when I have heard him speak or in any of the few private conversations I have had with him expressed any inclination to overrule settled Supreme Court precedents. The Nixon Tapes case is a settled precedent as are Humphrey’s Executor and Morrison v. Olson, on the removal issue. In a major 2010 presidential power case, Free Enterprise Fund v. PCAOB, Chief Justice John Roberts wrote a majority opinion reaffirming the precedential status of Humphrey’s Executor, while declining to allow an independent agency, the PCAOB, to be nestled within another independent agency, the SEC – something that had never before been attempted.

Chief Justice Roberts’ message in his majority opinion in this case was very clear, and it is a view which I think Judge Kavanaugh shares. The chief justice’s message in Free Enterprise Fund was that he was not interested in rolling back the post-1937 Administrative State, but he would block new expansions of the Administrative State. This also explains why Judge Kavanaugh saw a constitutional problem with the creation in 2011 of an independent, one person Director of the Consumer Financial Protection Bureau (CFPB). Prior to 2011, independent entities had always been multi-member commissions, whereas the CFPB was a centralized one person organization.

Judge Kavanaugh, following Chief Justice Roberts’ opinion in Free Enterprise Fund, said “thus far, but no farther” to the expansion of the administrative state. This position is not only not “radical,” but it is confirming of the status quo!

As to Morrison v. Olson, it must be noted that one aspect of that decision which critics like — its Appointments Clause holding — has, in fact, been overruled sub silentio, by Justice Antonin Scalia’s unanimous Supreme Court opinion in 1997 in Edmond v. United States. Moreover, in Free Enterprise Fund, Chief Justice Roberts cites Edmond v. United States as being good law, while declining to cite Appointments Clause holding of Morrison v. Olson.

My best guess is that Judge Kavanaugh’s views on executive power are almost identical to those of both Chief Justice Roberts and of Justice Elena Kagan’s. I also think Judge Kavanaugh’s views on the separation of powers generally align with the views of retiring Supreme Court Justice Anthony M. Kennedy.

As a law professor, I do criticize both the legal reasoning and the outcomes in Humphrey’s Executor; in United States v. Nixon; and in Morrison v. Olson. But I do that as a scholar whose job it is to assess what legal arguments are good and what legal arguments are bad.

A Supreme Court justice does not have the luxury that I have as a law professor to criticize precedents on which thousands of people have relied since those opinions were issued. The job of a Supreme Court justice is to be an umpire calling balls and strikes, as Chief Justice Roberts so memorably said. Judge Kavanaugh agrees with that vision, and I do not believe Judge Kavanaugh’s views on executive power are any different from the view of either Chief Justice Roberts or Justice Kagan.

Steven G. Calabresi is a co-author of “The Unitary Executive: Presidential Power from Washington to Bush” and the Clayton J. & Henry R. Barber Professor at Northwestern Pritzker School of Law.