Federal Courts and Nominations

What does Kavanaugh’s paper trail say? Let’s ask the experts.

Ahead of Judge Brett M. Kavanaugh’s Supreme Court confirmation hearings next week, The Post asked legal scholars to identify an opinion that best illustrates his judicial philosophy. Here’s what they had to say:

Abortion rights and executive power

Before his nomination to the Supreme Court, Kavanaugh’s most prominent moment during the Trump presidency was his role in Garza v. Hargan, a case involving an undocumented teenager who was blocked by the federal government from receiving an abortion. The case brings together two of the elements in Kavanaugh’s jurisprudence that have most concerned those opposed to his nomination: his view on Roe v. Wade and his deference to executive power.

Garza grew from an abrupt decision by the government office overseeing the care of undocumented minors that federally funded shelters could no longer “facilitate” abortions without direct approval from the office’s leadership. For the teenage girl whose case came before Kavanaugh, all the government needed to do was, essentially, open the shelter door.

But the office refused. The Justice Department eventually acknowledged the teenager’s right to an abortion, but insisted it was enough for the office to continue its efforts to place her outside the care of a federally funded shelter. At first, Kavanaugh ruled to grant that wiggle room, though the girl was running out of time before her pregnancy proceeded beyond the point at which she could legally obtain an abortion. When the full appeals court vacated Kavanaugh’s ruling, he dissented, criticizing the court’s opinion as a “radical extension of the Supreme Court’s abortion jurisprudence.”

In Garza, the government found agreement in Kavanaugh for a position on the furthest edge of what Roe allows. More strikingly, the judge was willing to place that limit on the teenager’s right without requiring any reasonable process on the administration’s part: The policy on “facilitating” abortion shows all the signs of having been thrown together by officials who only bothered to consult the lawyers afterward.

While some dysfunction is bound to occur under any president, the Trump administration has proved particularly willing to stake out radical and poorly lawyered positions. Kavanaugh’s judicial philosophy of deference toward the executive is honestly come by — but Garza raises the question of just how far it might be pushed under President Trump.

Quinta Jurecic
Managing editor, Lawfare

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A property-rights restoration

Just as Chief Justice John G. Roberts Jr.’s confirmation hearing focused on an endangered species case, the 2003 case of Rancho Viejo v. Norton, so too might Kavanaugh’s: the 2011 case Otay Mesa Property v. U.S. Department of Interior.

I was not involved in the Otay Mesa Property decision, written by Kavanaugh, which vacated a service ruling that a piece of property was “critical habitat” for the San Diego fairy shrimp, but I did spend many years litigating shrimp and other San Diego County endangered-species issues with the federal government. (Full disclosure: I was counsel for the landowner in the 2003 case involving what Roberts, then a judge on the U.S. Court of Appeals for the D.C. Circuit, called in an opinion “the hapless toad” — the Arroyo Toad, listed as endangered by the U.S. Fish and Wildlife Service.)The abuse of the law and regulations by federal, state and local authorities in concert with self-anointed defenders of the species has been ongoing for 30 years. The Endangered Species Act operates to empower federal bureaucrats to rule as land-use czars in Southern California. Suffice to say, you wouldn’t believe what goes on.

And in Otay Mesa Property, neither did Kavanaugh and his colleagues. “Several factors taken together point to a lack of substantial evidence for the Fish and Wildlife Service’s determination that plaintiffs’ property was ‘occupied’ by the San Diego fairy shrimp in 1997,” the judge wrote before carefully eviscerating the agency’s arguments. He concluded: “The current record is simply too thin to justify the action the Service took.”

The willingness of the judge to simply dive in and examine agency assertions in cases where agency actions effectively “take” private property without any compensation — and usually only after years, if not decades, of expensive studies, meetings and notice-and-comment rulemaking — heartens anyone who believes the framers meant what they said when, with the Fifth Amendment, they protected property from being seized by the government without compensation.

With Kavanaugh’s confirmation comes a hope that the “takings clause” will rise again even as the doctrine of “Chevron deference” falls. The fairy shrimp, long the bane of property rights in Southern California, may turn out to have signaled a revolution in the law that is actually a counterrevolution: restoring property rights.

Hugh Hewitt
Post contributing columnist, host of a nationally syndicated radio show and a professor at Chapman University’s Fowler School of Law

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The risks of the unitary executive

Kavanaugh has written many insightful opinions, but the one that best exemplifies both the strengths and the weaknesses of his jurisprudence may be his recent dissent in PHH Corporation v. Consumer Financial Protection Bureau. The opinion showcases his careful reasoning, but also highlights a shortcoming of his devotion to “unitary executive” theory.

PHH Corporation involves a challenge to the constitutionality of the Consumer Financial Protection Bureau, a powerful financial regulatory agency headed by a single director appointed by the president for a five-year term, during which he or she can only be removed “for cause.” As Kavanaugh explains, the Constitution lodges all “executive” power in the hands of the president. Independent agencies such as the CFPB, he says, are “a headless fourth branch of the U.S. Government” that poses “a significant threat to individual liberty and to the constitutional system of separation of powers.”

While the Supreme Court has upheld some independent agencies, the CFPB goes beyond those cases because it is headed by a single director. Kavanaugh fears that the “CFPB’s concentration of enormous power in a single unaccountable, unchecked Director poses a far greater risk of . . . abuse of power, and a far greater threat to individual liberty, than a multimember independent agency.”

But Kavanaugh does not consider the possibility that concentrating even greater power in the hands of a single person — the president — also poses grave risks. The “unitary executive” theory underlying his opinion made sense in a world where the executive branch was confined to the comparatively narrow range of powers granted by the original meaning of the Constitution. It is far more problematic today, including on originalist grounds.

Federal agencies now regulate almost every aspect of American life. If the president has near-total control over them, he or she has much greater power than originally granted — more than can safely be entrusted to any one person. So long as the executive wields authority far beyond the original meaning, Congress should be allowed to insulate some of it from total presidential control to prevent excessive concentration of power.

That doesn’t mean Kavanaugh was wrong about the CFPB, which is indeed an extreme case. But application of the unitary executive theory to powers not originally given to the federal government is a notable flaw in Kavanaugh’s jurisprudence.

Ilya Somin
George Mason University law professor, adjunct scholar at the Cato Institute and the author of “Democracy and Political Ignorance: Why Smaller Government is Smarter.”

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A careful and subtle opinion

I seldom assign my law students to read recently decided lower-court opinions, but last spring I made one exception: Kavanaugh’s dissent in a case involving presidential control over the federal bureaucracy, PHH Corporation v. Consumer Financial Protection Bureau. The case is technical, but much of law is technical and far removed from hot-button social issues.

The Constitution does not expressly say the secretary of state serves at the pleasure of the president, but George Washington, James Madison and the first Congress all agreed in 1789 that this rule was implicit in the Constitution. The president is the chief executive, executive departments answer to him, and the heads of these departments must be removable at will. For the secretary of state, the president is the unfettered firer in chief.

But for certain “independent agencies,” the statutory rules are different: The president may remove agency commissioners only for “good cause.” But what’s the difference, and where to draw the line?

In PHH Corporation, Kavanaugh explains exactly how multimember commissions such as the Securities and Exchange Commission and the Federal Communications Commission are different from departments such as the State Department headed up by a single person. It’s a careful and subtle opinion, blending fidelity to the framers’ original understanding of the Constitution with respect for modern developments such as the rise of the administrative state. It reflects a persuasive vision of the Constitution’s commitment to a “unitary executive.” The Constitution explicitly and emphatically vests the executive power in one president and all lower executive officials ultimately answer to him, in one way or another — albeit in slightly different ways, depending on the details of the lower office. Unlike extreme versions of “unitary executive theory” famously associated with the conservative legal scholar John Yoo, Kavanaugh’s is a modest version of the theory, respectful of modern independent agencies and noncommittal on contested issues of presidential war power.

Akhil Reed Amar
Sterling Professor of Law and Political Science, Yale Law School

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A poor record on privacy

No single case captures any judge’s philosophy or approach, but Kavanaugh’s treatment of dragnet surveillance by the National Security Agency in Klayman v. Obama reveals a tendency to defer to national security assertions and underestimate competing constitutional concerns.

The case challenged the NSA’s secret collection of the records of virtually every phone call Americans made. The NSA didn’t listen to the calls, but it kept a massive database that tracked who we called, who called us and how long we talked — for years at a time. When the secret program was disclosed to the public, a bipartisan coalition in Congress repealed the authority. The systematic invasion of innocent Americans’ privacy wasn’t justified, the people’s representatives concluded.

Kavanaugh saw it differently. When a district court ruled in Klayman that the program might be unconstitutional, the U.S. Court of Appeals for the District of Columbia Circuit reversed, and Kavanaugh voted to deny full court review. In a short opinion, he asserted that the program raised no Fourth Amendment concerns at all, relying on an analog-era case that upheld the use of a “pen register” to collect such data on a single phone for a few days. But as the Supreme Court held this past June, such analog-era rulings don’t control the digital world, where the government can collect massive amounts of data on virtually anyone. To Kavanaugh, there was no difference between collecting a few phone records on a single individual over a few days and using digital technology to collect and maintain such data on everyone for years at a time.

Kavanaugh went on to say that, even if the NSA’s action implicated the Fourth Amendment, he would still uphold the program because “the critical national security need outweighs the impact on privacy.” But the NSA was never able to point to a single terrorist caught by the program. And while Kavanaugh noted that the NSA didn’t listen to the calls, a lot of intimate information can be revealed through who you’ve called — whether it’s a psychiatrist, Alcoholics Anonymous, a lover, a rape crisis center or a criminal defense lawyer.

David D. Cole
National legal director, American Civil Liberties Union. The ACLU filed an amicus brief in favor of the plaintiff in Klayman v. Obama, but does not endorse or oppose judicial nominees.

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Gun-law radicalism

Americans have a right under the Constitution to have a gun at home for self-defense. At the same time, none of us has a right to have any gun we want, at any time, in any place. Voters get this: Nearly 75 percent believe the Constitution allows for strict gun regulation. The government must respect our constitutional rights, but it must also be able to pass and enforce sensible regulations that keep guns out of the hands of dangerous people — including felons, domestic abusers and the dangerously mentally ill.

Kavanaugh, however, might beg to differ. In his 2011 dissenting opinion in Heller v. District of Columbia — a sequel to the landmark 2008 Supreme Court case by the same name — Kavanaugh made clear that only “traditional and common gun laws in the United States remain constitutionally permissible,” but not “outliers that are not traditional or common in the United States.”

Under Kavanaugh’s analysis, virtually no new gun laws would be constitutional.

Wielding this radical reading of the Constitution and Supreme Court precedent, Kavanaugh would have struck down the District’s ban on assault weapons. He also would have struck down D.C.’s gun-registration requirement, writing: “Registration of all guns lawfully possessed by citizens in the relevant jurisdiction has not been traditionally required in the United States and, indeed, remains highly unusual today.” Gun registration highly unusual? Tell that to the jurisdictions that already mandate registration.

Let’s be clear: The Constitution’s text and history do not preclude sensible gun regulations. Even the Justice Antonin Scalia-led Supreme Court in 2008 made that clear. Kavanaugh’s 2011 dissent in Heller, however, is an example of his unique brand of selective originalism — elevating the parts of the Constitution he apparently prefers while ignoring or discounting the parts he doesn’t. Unfortunately, as my organization has shown, this tendency pervades far too much of Kavanaugh’s jurisprudence.

Elizabeth Wydra
President, Constitutional Accountability Center

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Rigorous textual analysis

Kavanaugh has shown a deep commitment to following the text of the law — even when it leads him out on a limb. The 2011 case United States v. Papagno is the perfect case study that vividly (and succinctly) illustrates his textualist method.

In Papagno, the U.S. Court of Appeals for the District of Columbia Circuit considered whether the Mandatory Victims Restitution Act required that someone who had stolen from his employer must reimburse that employer for the cost of an internal investigation. Writing for a unanimous panel, Kavanaugh identified the term at the center of the dispute — “participation” — and engaged in a careful, thoroughly-researched exegesis, consulting common parlance, dictionary definitions, Supreme Court precedent and related-but-crucially-different terms in another restitution statute.

Rigorous textual analysis led Kavanaugh and his fellow panel members to conclude that the law did not require the defendant, Victor Papagno, to reimburse his employer for its internal investigation — despite the fact four other circuit courts had reached the opposite conclusion. By the time the Supreme Court took up the issue in Lagos v. United States last year, several more circuits had joined the opposite side of the split, leaving the D.C. Circuit standing alone. The Supreme Court, in an opinion by Justice Stephen G. Breyer, unanimously sided with the D.C. Circuit, again on textualism grounds. This provided a crucial clarification of federal law that might never have occurred if Kavanaugh had not had the courage to follow his textualist convictions.

Aside from its substantive significance, Papagno also exemplifies Kavanaugh’s distinctive writing style: methodical and straightforward, but also engaging and genuinely fun to read. In Papagno, he set out to bring clarity to a complex statutory regime and, at the same time, tried to draw the reader in with colorful factual descriptions and accessible metaphors. Somehow, he succeeded at both. Rarely is statutory interpretation such a treat to read.

Sarah Pitlyk
Former law clerk to Kavanaugh and special counsel at the Thomas More Society, a nonprofit law firm based in Chicago

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Too soft on large corporations

Kavanaugh’s dissent in the net neutrality case, United States Telecom Association v. Federal Communications Commission, illustrates his judicial philosophy in several ways. First, it shows how extreme it is. None of the other 10 judges on the U.S. Court of Appeals for the District of Columbia Circuit, including several other conservative, Republican-appointed judges, accepted his argument that the rule violated the First Amendment — nor did any Republican-appointed FCC commissioners who had voted against net neutrality. This extremism helps explain why, as the Congressional Research Service has concluded, Kavanaugh has dissented more frequently than any other D.C. Circuit judge.

Second, his dissent exemplifies his willingness to distort constitutional doctrine to achieve his desired result. As several majority judges pointed out, “no Supreme Court decision” supported his “counterintuitive” claim that the First Amendment somehow prohibited the FCC from adopting a rule that requires an Internet service provider to simply “abide by its representations” to consumers that it would provide open access to the Internet rather than pushing consumers toward the corporation’s own websites.

Third, his claim that the FCC lacked statutory authority to adopt net neutrality is a good example of his ideological efforts to reduce the ability of agencies to issue regulations affecting large corporations to protect public health, safety and welfare. As several of his fellow judges observed, the Supreme Court had already “pointedly recognized” that Congress had given such authority to the FCC. Kavanaugh’s dissent epitomizes how he approaches cases not with an open mind, but with a political agenda to help corporations and advance conservative policy positions, as we’ve seen in cases concerning the environment, reproductive choice, health care, discrimination and other areas affecting our daily lives.

With the Republican repeal of net neutrality after President Trump took office, this issue may come before the Supreme Court in the future.

Elliot Mincberg
Senior fellow, People For The American Way

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