For Immediate Release

Kavanaugh Has Publicly Discussed Cases Before, Including Those He Would Like to Overturn

WASHINGTON - Willingness to Overturn Precedent

U.S. v. Nixon - Wash. Law. 34 (1999), Lawyers' Roundtable: Attorney-Client Privilege; p. 191

  • "[M]aybe Nixon was wrongly decided - heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information sought by a subordinate branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently. ... Maybe the tension of the time led to an erroneous decision.” 
Morrison v. Olson: American Enterprise Institute, 3/31/16
  • Kavanaugh was asked, “Can you think of a case that deserves to be overturned.” He responded, “Yes.” He was then asked, “Would you volunteer one?” Kavanaugh responded, “No.” Kavanaugh later responded, “Actually I’m going to say one: Morrison v. Olson….It’s been effectively overruled but I would put the final nail in.” [54:35]
Morrison v. Olson - George Mason University Law School, 6/2/16
  • “An interesting and important exercise for all of us is to think about which Scalia dissents will become the law of the land. I’m going to throw caution to the wind and give three predictions of my own… First, I believe Justice Scalia never wrote a better opinion than his dissent in Morrison v. Olson. That decision upheld the unelected and unaccountable independent counsel, a prosecutor appointed by the courts and supervised by no one and removable by no one except for cause… Of course, for a dissent to become the law someday, in other words, for a decision to be overruled, usually requires that the decision not just be considered wrong but that it also have serious negative consequences. Here, I predict that a future court will find that condition met. The idea of core executive powers being exercised by unelected and unsupervised and unaccountable officials is cause for concern and a threat to liberty… In short, I predict that Justice Scalia’s dissent in Morrison v. Olson will someday be the law of the land.”  [10:41]
  • Kavanaugh responded to an audience question regarding his prediction that Morrison v. Olson would be overturned, and whether he thought the unitary executive theory would come to dominate in separation of powers. “As to core executive powers, including the power to prosecute, I think a future court presented with that question will see the wisdom of what he said in that case. Whether it goes broader than that is a different question, but that’s what I think when I said I think it’ll someday become the law of the land. He did point out the practical consequences but I disagree with you that he did not do the formal analysis or the formalist approach. He did both. So he went through very carefully the text and history and structure of the provisions of the Constitution and explained them. But then the brilliance of it was he didn’t just explain why he was right on the law, which he was, but why this mattered, why we should care.” [24:59]
Morrison v. Olson - American Enterprise Institute, 9/18/17
  • “For a total of 33 years, William Rehnquist righted the ship of constitutional jurisprudence. To be sure, I do not agree with all of his opinions. No two people would agree with each other in all cases. Morrison v. Olson in 1988 comes quickly to mind as a Rehnquist opinion I still have some trouble with, and there are others as well.” [16:10]
 
Decker v. Northwest Environmental & Auer v. Robbins - George Mason University Law School, 6/2/16
  • “Decker, as [Justice Scalia] explained, Auer violates a fundamental principle of separation of powers: that the power to write a law and the power to interpret it cannot rest in the same hands. Justice Scalia pointedly noted that Auer was not a logical corollary to Chevron, but a dangerous permission slip for the arrogation of power. In the end Justice Scalia said that Auer ‘contravenes one of the great rules of separation of powers, he who writes a law must not adjudge its violation.’ On the law, Justice Scalia explained that Auer is one big, unexplained, unjustified ipse dixit, and there could be no doubt, he pointed out that it has huge practical consequences for individual liberty when the law writer is also the law interpreter. In short, I predict that Auer will someday be overruled and that Justice Scalia's dissent in Decker will be the law of the land.

Abortion Rights

Roe v. Wade - American Enterprise Institute, 9/18/17

  • “I want to speak about William Rehnquist because he was my first judicial hero.” [14:40]
  • “In case after case after case during law school, I noticed something. After I read the assigned reading, I would constantly make notes to myself: Agree with Rehnquist majority opinion. Agree with Rehnquist dissent. Agree with Rehnquist analysis. Rehnquist makes a good point here. Rehnquist destroys the majority's reasoning here. ... [H]is opinions made a lot of sense to me. In class after class, I stood with Rehnquist.” [15:20]

Planned Parenthood v. Casey, Obergefell v. Hodges, and death penalty cases - George Mason University Law School, 6/2/16

  • “Courts have no legitimate role, Justice Scalia would say, in creating new rights not spelled out in the Constitution. On those issues, he believed in complete deference to the political branches and the states. Deference not for the sake of deference, but deference because the Constitution gave the Court no legitimate role in the case. Think about his dissents in Casey, on abortion, and in Obergefell, on same-sex marriage. His opinions on the constitutionality of the death penalty in response to the abolitionist positions articulated by some of his fellow justices over the years. An interesting and important exercise for all of us is to think about which Scalia dissents will become the law of the land.” [7:55]

Health Care

NFIB v. Sebelius - Federalist Society, 11/17/12

  • Kavanaugh Said The Three Things That Can Be Learned From NFIB Health Care Decision Is The Supreme Court Will Enforce Structural Limits To The Constitution, The Power To Regulate Commerce Is Not The Power To Force People To Enter Into Commerce, And The Constitutional Avoidance Doctrine Is A Tool To Brush Back Congress. “What are some of the things we can take away from NFIB and learn and use to analyze future and other cases? So I think there are three I’m going to focus on briefly this morning. First, NFIB, again is another example of many where the court, the Supreme Court of the United States, will enforce the structural limits of the constitution. Second, that the power to regulate commerce is not the power to force people to enter commerce. And third, that the constitutional avoidance doctrine is a tool, a somewhat formless tool, a tool that can be applied in ways people don’t like sometimes, but it’s a tool that the courts use at times as a brush back to Congress to force Congress to speak more clearly when Congress wants to enact legislation that will get close or at the Constitutional line.” [49:40-50:45]
  • Kavanaugh Said The Individual Mandate Was “Unprecedented” As “Congress Has Never Used The Commerce Clause Power To Force People To Purchase Goods Or Services.” “There are extraordinary similarity between the two opinions in my view. First, on the commerce clause the Chief Justice starts, where? With the text, the precise words of the Constitution, ‘regulate commerce’. He focuses in on ‘regulate commerce’. Does that give you the power, give Congress the power, to force people to engage in commerce? To force people to purchase goods and services? And the Chief goes thru the ordinary understanding of regulate today and back at the time the Constitution was written, instead of – No! No! Regulate means regulate commerce that is already existing, not to force people into purchases. The precise words of the Constitution, again so important to the Chief Justice. Then where does he go? The novelty. Just like in free enterprise. The novelty of this. The mandatory purchase requirement. One of the things when this case first came up, when I first heard about it, I think when a lot of people, gee I wonder if Congress has done this before. Have they, they probably have done this before. There’s so many statutes out there, and then I think a turning point in the litigation and a turning point in public thought about this whole issue was actually Congress has never done this before. This is unprecedented. Congress has never used its commerce clause power to force people to purchase goods or services. It is unprecedented in our 222 years. That was a huge point. It was a huge point for the Chief in Free Enterprise Fund in the double fore clause. Huge point for the Chief for the Court and I think for the whole debate on this issue in NFIB. The novelty and unprecedented nature of this. And if you look at the Chief’s opinion he quotes from Free Enterprise Fund about perhaps the most telling indicator of the Constitutional problem here is the lack of any precedent for this kind of Congressional action” [55:30-57:25]
  • Kavanaugh Said The Court Needed To Enforce Structural Limits In the Constitution. Kavanaugh said, “And then the implications. So the implications of Free Enterprise were erosion of Article 2. Fragmenting executive power. All sorts of Congressional take over essentially of the Executive Branch. Here’s the erosion of federalism limits in NFIB. The implication of if the Court can engage in, Congress can engage in these kinds of mandatory purchase statutes. What else could they require people to purchase? As the Chief ultimately says, ‘this is not the country the framers envisioned. This is not the Constitution the framers envisioned.’ Setting down a tough, hard line on what Congress can do. Enforcing the structural limits. So that’s, I think that’s an extremely important aspect of NFIB. That the Court, like in Free Enterprise Fund, will enforce the structural limits of the Constitution. It’s not just whatever Congress says, goes, with respect to the structural limits. And we hear Neal Katyal, who is a brilliant lawyer and was Solicitor General, and he has challenged, I think, this idea that the Courts should play a role in enforcing the structural limits. He’s said, that’s in consistent with some notions of judicial restraint. And I think that is quite incorrect and that needs to be, that assertion needs to be challenged and the idea that the Court has in these kinds of structural cases needs to be defended.” [58:18-59:55]
  • Kavanaugh Said That Giving Congress The Right To “Force Mandatory Purchase Of Goods Or Services” Could Lead To “Mandatory Retirement Accounts, Mandatory College Savings Accounts, Mandatory Housing Accounts, Mandatory Food Accounts, Mandatory Disability Insurance, Mandatory Auto Insurance At The Federal Level.” Kavanaugh said, “The second big point from NFIB, the power of to regulate commerce does not equal the power to force commerce. Five justices so conclude the Chief Justice and the four decenters. And that is just, to me, a major principle of Constitutional law. Now I know everything gets lost in the precise holding and the politics and the policy, but just thinking of the longer term stream of Constitutional decision making that this was a potential inflection point. The power to regulate commerce. Does that give Congress the power to force mandatory purchases of goods and services? And I respect the idea that this would, that some have articulated that this would just be health care, but something like this when it is out of the shed, when the tool is out of the shed it can be used for all sorts of purposes. Mandatory retirement accounts. Mandatory college savings accounts. Mandatory housing accounts. Mandatory food accounts. Mandatory disability insurance. Mandatory auto insurance at the federal level. This kind of thing, if it had been approved under the commerce clause would have given Congress a big new tool and I think this is an important structural principle that the Court reinforced in NFIB. Five justices reinforced in NFIB. Mainly the power to regulate commerce does not equal the power to force purchases of goods and services. [01:01:16-01:02:50]
  • Kavanaugh Said That Justice Roberts Used Constitutional Avoidance In Deciding To Uphold The Individual Mandate. Kavanaugh said, “And the third, as I mentioned, Constitutional avoidance. Constitutional avoidance is a tool the court often uses as a brush back essentially to Congress. To say ‘we are not going to interpret the statute to go where it may be its plain terms, reasonably would be read to go because that would entrench upon Constitutional limits. And so we are going to interpret the statue more narrowly, we are going to interpret the statute differently.’ And in NFIB the Court, the Chief, did this in construing. He said, the mandate presents Constitutional problems for the reasons we’ve discussed, but if it’s construed as a tax incentive provision that Constitutional problem would go away.’ There is huge debate about whether was a proper application of the Constitutional avoidance doctrine or not. I’m not going to get into that debate, other than to say the Chief and the Court therefore, construed it to be a tax incentive and as a tax incentive there are, it is quite common in the tax code to be tax incentives that encourage behavior or discourage behavior, but don’t mandate certain behavior backed by sanctions. Whether its charity, charitable deductions or cigarette smoking or gambling or the home mortgage deduction, or solar panels there are lots of examples in the tax code and the Chief construed this to be yet another tax incentive and as such within the scope of the taxing power. The Constitutional, the bigger principle there, the Constitutional avoidance doctrine is a doctrine that courts will rely on and as litigants and as judges all of us need to be aware about that doctrine to pay attention to the ability of that doctrine to essentially defuse an otherwise hot Constitutional issue. The court has seen fit to do that on many occasions in the past and of course the Chief decided again to do so in NFIB.” [1:02:55-1:04:53]

NFIB v. Sebelius - Case Western Reserve Law School, 10/1/13

  • Kavanaugh Said That Justice Roberts Agreed With The Dissenters That The Individual Mandate Was Unconstitutional, But He Applied The Constitutional Avoidance Principle To Allow It Anyway. Kavanaugh said, “Just consider the constitutional avoidance canon and the healthcare cases. That’s one that all of us focused on. Everyone is familiar with what happened generally in the healthcare cases, but I think most people think the main disagreement between Chief Justice Roberts on the one hand and the four dissenters on the other was on the question whether the Tax Clause justified the individual mandate. But if you look at the opinion and parse it closely, Chief Justice Roberts actually agreed with the dissenters that the individual mandate provision, as written, could not be justified by the Tax Clause.  Could not be justified by the tax clause. So what happens? How did he reach the conclusion he did? Well he went on and said the statute could be construed not to impose a mandate but rather just a traditional tax incentive of the kind that we have with regulatory taxes: cigarette taxes, mortgage interest deduction, things like that in the tax code. And then he relied on the constitutional avoidance canon to interpret the individual mandate to not really be a mandate. So he said by interpreting it that way it will be constitutional. We will avoid the unconstitutionality that would otherwise exist with how the statute was drafted. The dissenters disagreed. They argued that the constitutional avoidance canon was not so flexible so as to allow a judge to stretch the statute so far from its ordinary terms. So in that case, we have agreement on basic constitutional principles between Chief Justice Roberts and the dissenters, really agreement on how to interpret the text as written. Where the disagreement really came—and it is amazing that in a case of that magnitude and that importance and that significance that we see just with what’s going on in Washington today, how people still feel about this on both sides—it came down to, “How do you apply the constitutional avoidance doctrine?” [23:55 - 25:56]

NFIB v. Sebelius - Heritage Foundation, 10/25/17

  • Kavanaugh Said That The Constitutional Avoidance Canon Should Be Jettisoned Saying That It Led Justice Roberts To Upholding The Individual Mandate In Obamacare Despite Agreeing with Scalia, Kennedy, Thomas And Alito That It Was Unconstitutional—Kavanaugh: “Think About That For A Moment, Unless It’s Too Painful For You.” “Apart from (or, I guess, in addition to) those reasons, I would consider jettisoning the constitutional avoidance canon for a different reason: The trigger for the canon—“Clear or ambiguous?”—is so uncertain. That flaw was famously highlighted in NFIB v. Sebelius. In analyzing that case, it is perhaps important to underscore something that seems to be overlooked by almost all observers, even those who should know better. Chief Justice Roberts agreed with the four dissenters (Justices Scalia, Kennedy, Thomas, and Alito) on all of the key constitutional and statutory issues raised about the individual mandate. Those five Justices agreed about the scope of the Commerce and Necessary and Proper Clauses. They agreed about the scope of the Taxing Clause. And they agreed that the individual mandate provision was best read to impose a legal mandate—a penalty rather than a tax. In short, they agreed that the individual mandate, best read, could not be sustained as constitutional under the Commerce, Necessary and Proper, and Taxing Clauses. Think about that for a moment, unless it’s too painful for you. What they disagreed on with respect to the individual mandate—and, amazingly, all they disagreed on—was how to apply the constitutional avoidance canon. In particular, they disagreed about whether the individual mandate provision was sufficiently ambiguous that the Court should resort to the constitutional avoidance canon. The dissenters said it was not ambiguous; the Chief Justice said it was ambiguous. For all that has been written about the NFIB case, the decision on the individual mandate turned not on the proper interpretation of the Constitution and not on the best interpretation of the statute. It turned entirely on how much room judges have to find ambiguity when invoking the constitutional avoidance canon. In my view, this is a very odd state of affairs. A case of extraordinary magnitude boils down to whether a key provision is clear or ambiguous, even though we have no real idea how much ambiguity is enough to begin with, nor how to ascertain what level of ambiguity exists in a particular statute.” [33:45 – 36:25]

Executive Power

U.S. v. Nixon - Wash. Law. 34 (1999), Lawyers' Roundtable: Attorney-Client Privilege; p. 191

  • "[M]aybe Nixon was wrongly decided - heresy though it is to say so. Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information sought by a subordinate branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently. ... Maybe the tension of the time led to an erroneous decision.”

 Clinton v. Jones - Edward Coke Appellate Inn of Court, 5/17/10; p. 639-644

  • “I'm not sure whether Clinton v. Jones is right as a constitutional matter, but I do know and especially appreciate now that the arguments Walter [Dellinger] made about the burdens of the Presidency are right-on as a descriptive matter. "

Morrison v. Olson: American Enterprise Institute, 3/31/16

  • Kavanaugh was asked, “Can you think of a case that deserves to be overturned?” He responded, “Yes.” He was then asked, “Would you volunteer one?” Kavanaugh responded, “No.” Kavanaugh later responded, “Actually I’m going to say one: Morrison v. Olson….It’s been effectively overruled but I would put the final nail in.” [54:35]

Morrison v. Olson - George Mason University Law School, 6/2/16

  • “An interesting and important exercise for all of us is to think about which Scalia dissents will become the law of the land. I’m going to throw caution to the wind and give three predictions of my own… First, I believe Justice Scalia never wrote a better opinion than his dissent in Morrison v. Olson. That decision upheld the unelected and unaccountable independent counsel, a prosecutor appointed by the courts and supervised by no one and removable by no one except for cause… Of course, for a dissent to become the law someday, in other words, for a decision to be overruled, usually requires that the decision not just be considered wrong but that it also have serious negative consequences. Here, I predict that a future court will find that condition met. The idea of core executive powers being exercised by unelected and unsupervised and unaccountable officials is cause for concern and a threat to liberty… In short, I predict that Justice Scalia’s dissent in Morrison v. Olson will someday be the law of the land.”  [10:41
  • Kavanaugh responded to an audience question regarding his prediction that Morrison v. Olson would be overturned, and whether he thought the unitary executive theory would come to dominate in separation of powers. “As to core executive powers, including the power to prosecute, I think a future court presented with that question will see the wisdom of what he said in that case. Whether it goes broader than that is a different question, but that’s what I think when I said I think it’ll someday become the law of the land. He did point out the practical consequences but I disagree with you that he did not do the formal analysis or the formalist approach. He did both. So he went through very carefully the text and history and structure of the provisions of the Constitution and explained them. But then the brilliance of it was he didn’t just explain why he was right on the law, which he was, but why this mattered, why we should care.” [24:59]

Morrison v. Olson - American Enterprise Institute, 9/18/17

  • “For a total of 33 years, William Rehnquist righted the ship of constitutional jurisprudence. To be sure, I do not agree with all of his opinions. No two people would agree with each other in all cases. Morrison v. Olson in 1988 comes quickly to mind as a Rehnquist opinion I still have some trouble with, and there are others as well.” [16:10]

 Decker v. Northwest Environmental & Auer v. Robbins - George Mason University Law School, 6/2/16

  • “Decker, as [Justice Scalia] explained, Auer violates a fundamental principle of separation of powers: that the power to write a law and the power to interpret it cannot rest in the same hands. Justice Scalia pointedly noted that Auer was not a logical corollary to Chevron, but a dangerous permission slip for the arrogation of power. In the end Justice Scalia said that Auer ‘contravenes one of the great rules of separation of powers, he who writes a law must not adjudge its violation.’ On the law, Justice Scalia explained that Auer is one big, unexplained, unjustified ipse dixit, and there could be no doubt, he pointed out that it has huge practical consequences for individual liberty when the law writer is also the law interpreter. In short, I predict that Auer will someday be overruled and that Justice Scalia's dissent in Decker will be the law of the land.”

The Powers of Congress: Commerce Clause Jurisprudence

United States v. Lopez & United States v. Morrison - American Enterprise Institute, 9/18/17

  • “Those two decisions were critically important in putting the brakes on the Commerce Clause and in preventing Congress from assuming a general police power. After Rehnquist had left the Court, in the health care case in 2012, although it is not often the first thing discussed about that case, we do remember that a five-justice majority said that the Commerce Clause did not give Congress authority to require citizens to purchase a good or service. Congress' Commerce Clause power undoubtedly remains very broad, but there are limits. Congress does not have a general police power, and William Rehnquist is largely responsible for that important feature of modern constitutional law.” (He’s not shy about saying that judges make law when talking about Rehnquist.) [35:40]

National Security

Hamdi v. Rumsfeld - George Mason University Law School, 6/2/16

  • “I believe that Justice Scalia’s dissent in Hamdi versus Rumsfeld will someday be the law of the land. In that case recall that the Court held that even absent a formal suspension of the writ of habeas corpus by Congress, American citizens could be detained in military detention as enemy combatants for the duration of hostilities. Which could mean a life sentence. Justice Scalia was utterly appalled by the notion that the Constitution permitted military detention of American citizens absent a formal suspension of the writ by Congress, but he was joined only by Justice Stevens. Why did he care? Why did he care about a Taliban terrorist who just happened to have been an American citizen by birth? He stated it on the first page, “the very core of Liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive.” Justice Scalia objected that the clear commands of the Suspension Clause were being watered down by the Court because of the perceived national security imperative of the moment. In his words, the court “seems to view its mission to make everything come out right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions.” To be sure, Justice Scalia made very clear that his views applied only to U.S. citizens. Military Detention of alien enemy combatants was permissible under the Constitution. But in his view, the Court badly succumbed to the pressure the time by allowing military detention of Americans. [13:30]

Second Amendment

D.C. v. Heller - American Enterprise Institute, 3/31/16

  • Kavanaugh said, “One of the areas that’s been difficult in the Second Amendment is, yes there is an individual right, but to what extent are regulations of arms, of guns permissible under Heller? And section two of Heller is all about why there is an individual right. Section three is, OK what exceptions to that right will we allow in Justice Scalia’s majority opinion? And on that he really used a history and tradition-based test. Laws that had traditionally been in place to allow certain kinds of narrow regulation of guns would be permissible. The question in many lower court cases since then is what’s the appropriate test to apply? What kinds of other regulations are permissible? And that’s been a real battleground in some of the lower court decisions since Heller. I thought Justice Scalia pretty clearly said what the test is—the history and tradition-based approach to figuring out any exceptions. I’ve been a lonely voice I will say in reading Heller that way.” [42:23]

Agency Power to Promulgate Rules & Regulations

Chevron v. NRDC - Notre Dame Law Review Federal Courts Symposium, 2/3/17; p. 1911

  • “Consider the Chevron doctrine. We see this doctrine all the time on my court with cases involving the huge agencies: EPA, the FCC, the SEC, and the like. Chevron tells us that we must defer to an agency’s reasonable interpretation of a statute if the statute is ambiguous. To begin with, the Chevron doctrine encourages agency aggressiveness on a large scale. Under the guise of ambiguity, agencies can stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcomes. I saw this firsthand when I worked in the White House, and I see it now from the other side as a judge. But think about what this means in real cases in courts. Say you have a really important agency rule that is being challenged before a three-judge panel. The question is whether the agency rule is authorized under the implementing statute. One judge says that the statute is clear and the agency loses. Two other judges say that the statute is ambiguous, so they defer to the agency even though they may agree with the first judge on what is the best reading of the statute. The result is that the agency wins, even though none of the three judges thought that the agency had the better reading of the statute.”
  • “The legality of a major agency rule may—and in my experience on many occasions does—turn not on whether the judges think the agency’s interpretation of the statute is the best interpretation, but rather on whether the statute is ambiguous. That is true even though there is no real objective guide for determining whether a statute is ambiguous. I should note, parenthetically, that there is a separate concern about Chevron as famously expressed by Judge Gorsuch. He said the doctrine is flawed ab initio because the Administrative Procedure Act says that courts should decide questions of law in administrative law cases of this sort."
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