As the confirmation hearings for Brett Kavanaugh continue, it is important to recognize that much of the controversy about his opinions will spring from the different perspectives that will underlie both the questions and the answers. Judges like Kavanaugh are constitutionalists, and think about their decisions in terms of how the Constitution is affected by specific cases. Many of the senators questioning him, on the other hand, will view the same opinions as expressions of politics or policy.
One example is regulation. Opinions by Kavanaugh have often reflected concern about the scope of government regulation. Politicians on the left translate this as hostility to federal protections of the environment, consumers, or internet users. But his decisions on the subject appear to arise out of his view that the Constitution created a democratic system in which the laws are made by a Congress elected by the American people. Kavanaugh is concerned that, since the New Deal, the unelected officials at administrative agencies have supplanted lawmakers in making most of the rules that the American people have to obey.
Over the last 25 years, these executive branch and regulatory agencies, which some call the administrative state, have issued more than 3,000 rules annually, totaling more than 101,000 rules. Agencies have acquired this extraordinary reach by broadly interpreting the powers granted to them by Congress, expanding their regulations and jurisdictions beyond what lawmakers originally intended.
Thus, although a senator may be concerned about why Kavanaugh has sought to limit the power of a particular regulatory agency, his decision was likely based not on hostility to the specifics of the rule but rather on his view that the rule went beyond what Congress had authorized. His objections to a rule at issue are highly likely to have flowed from his view that in a democracy, Congress should make the major decisions about regulation, not unelected officials of the Washington bureaucracy interpolating from statutory language passed many years before.
It is also likely that Kavanaugh will be questioned about those of his opinions that reflect strong support for the powers of the president. He has argued, for example, that the Consumer Financial Protection Bureau, an agency created by the Dodd Frank Act of 2010, was unconstitutional because the president could not remove its director from office at will. The implication may be that he took this position because he wants to give excessive power to a president or even opposes consumer protection. But again, the underlying issue for a constitutionalist judge like Kavanaugh is not the powers of any particular president, or of the Consumer Financial Protection Bureau, but the powers and duties of the president as contemplated by the Framers of the Constitution.
Most Americans know that our Constitution created a federal government with separation of powers. Congress makes the laws, the president enforces the laws, and the judiciary interprets the laws. The Framers wisely adopted this unusual structure because they believed that it was the only way to assure that Americans would be free of oppression by their own government. The idea that the same body could both enact a law and enforce it against the public was anathema to them.
While the Constitution makes Congress the sole source of laws, it also enjoins the president to “take care that the laws be faithfully executed.” The president, then, has the exclusive duty to enforce laws as he sees fit. In one of his opinions, therefore, Kavanaugh argued that the president must have the power to remove from office any administration official who will not carry out executive branch policy directives. Only this will enable presidents to comply with the command of the Constitution by appointing and dismissing the members of their administrations.
Finally, there will be charges that Kavanaugh has been an “activist judge” and, as a member of the Supreme Court, will fail to practice the “judicial restraint” that keeps judges and justices from substituting their own views about policy for the views of the elected Congress and president. The senators who make this charge will ignore or fail to recognize that the most controversial decisions of Kavanaugh have been in support of the separation of powers rather than in support of any particular government policy. Conservative judges and justices have always argued that the judiciary has no authority to interfere in the policy process.
But there is an important and essential difference for the judiciary between concern about policies and concern about implementing the structure of the Constitution. The Framers believed that it is a duty of the courts to protect this structure, particularly the separation of powers, if it is threatened by the actions of one or both of the other branches. That is “activism” that should be applauded by all Americans.
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