How Kavanaugh’s Hearing Will Spotlight the Separation of Powers

Judge Brett Kavanaugh

by Thomas Jipping & Christopher Baldacci: President James Madison once described how government reflects human nature. It also could be said that the confirmation of Supreme Court justices puts a spotlight on the nature of government.

The debate over any judicial nomination, especially to the Supreme Court, puts into very sharp relief the two different views of how much power judges should have.

Judge Brett Kavanaugh’s nomination to the Supreme Court is no exception. Many on the left want judges to make law, creating and imposing policies by manipulating the meaning of statutes or the Constitution.


Kavanaugh takes the opposite view. When he delivered the Joseph Story Lecture at The Heritage Foundation in October 2017, Kavanaugh said:
The judge’s job is to interpret the law, not to make the law or make policy. So, read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition.

Don’t make up new constitutional rights that are not in the Constitution. Don’t shy away from enforcing constitutional rights that are in the text of the Constitution.

Changing the Constitution is for the amendment process. Changing policy within constitutional bounds is for the legislatures.Similarly, when he joined President Donald Trump at the White House on July 9 for the nomination announcement, Kavanaugh said that judges should interpret statutes and the Constitution “as written.”

This issue is often understood by contrasting the judicial and legislative branches. The question is whether judges should interpret the law or make the law.

Put another way, may judges legislate from the bench?

Kavanaugh’s hearing—set to begin Sept. 4—will be a good opportunity to hear his views on the separation of powers. This is especially important because his nomination has also highlighted the relationship between the judicial and executive branches.

The left, at least these days, wants to separate the president from the executive branch that he heads. They demand limits and restrictions on Trump while, at the same time, they reject limits on executive branch agencies that they hope will deliver certain policy results.

Senate Minority Leader Chuck Schumer, D-N.Y., for example, has used this strange distinction to claim that Kavanaugh has “dangerously expansive beliefs about presidential power.”

Critics claim that Kavanaugh would be a “rubber stamp” for Trump or think that a president is above the law. (A previous article addressed how Kavanaugh’s opponents misrepresent his views on this issue.)

Kavanaugh’s views about executive power are evident from his speeches and, more importantly, his opinions on the U.S. Court of Appeals for the D.C. Circuit.

In 2016, for example, he wrote the opinion for a three-judge panel in PHH Corporation v. Consumer Financial Protection Bureau. The opening sentence reads: “This is a case about executive power and individual liberty.”

The court found that Congress had given “enormous power over American business, American consumers, and the overall U.S. economy,” not just to the CFPB, but also to its director.

While other independent agencies, such as the National Labor Relations Board or the Equal Employment Opportunity Commission, are run by multimember commissions, the CFPB director can act unilaterally.

While the president appoints someone to that position, the president cannot remove that person. As Kavanaugh described it:
The Director alone may decide what rules to issue. The Director alone may decide how to enforce, when to enforce and against whom to enforce the law.

The Director alone may decide whether an individual or entity has violated the law. The Director alone may decide what sanctions and penalties to impose on violators of the law.That, the court concluded, was too much power in too few hands.

Because the left likes what the CFPB does, they look the other way about how the agency does it. Not surprisingly, they attacked Kavanaugh for his decision, with Sen. Elizabeth Warren, D-Mass., saying that Kavanaugh opposed consumers and was simply a pawn in the hands of corporate interests.

When the full D.C. Circuit reversed Kavanaugh’s decision, his dissent opened with the same principle: The separation of powers and accountability in the exercise of each branch’s power are to “prevent tyranny and protect individual liberty.”

The left may want to separate the president from the executive branch, but the Constitution does the opposite, giving the “executive power” to the president.

The left can’t have it both ways.

They can’t call for limits on the president because they don’t like him, but then oppose limits on executive branch agencies because they like them.

That’s politics, not principle. And it’s dangerous politics.

In his majority and dissenting opinions in the CFPB case, Kavanaugh quoted Justice Antonin Scalia’s dissenting opinion in another case raising the same issue. Scalia wrote that the purpose of the “separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government, but to preserve individual freedom.”

Kavanaugh clearly embraces the fundamental principles of America’s Founders. Weakening the separation of powers by failing to enforce the Constitution’s limits on executive power ultimately undermines freedom itself.
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Thomas Jipping is deputy director of the Edwin Meese III Center for Legal and Judicial Studies and senior legal fellow at The Heritage Foundation. Christopher Baldacci is a member of the Young Leaders Program at The Heritage Foundation. Article was shared by The Daily Signal.

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