Russian asset Donald Trump’s pick to go to the Supreme Court, Brett Kavanaugh, has some problematic views of executive authority and the untouchability of the president. Those views seem to apply just to the office of the president, however, and not the government of the executive branch. Because he wouldn’t be a Federalist Society-endorsed nominee if he didn’t believe that government should not exist to protect our health, welfare, or safety—not if it means infringing in anyway on corporate America’s profits.
For example, in a dissent last year in the D.C. Circuit Court of Appeals, Kavanaugh wrote that agencies should not provide rules on any “major social or economic activities” unless they are specifically directed by Congress to do so. Some of his examples: “controls on cigarettes, banning physician-assisted suicide and imposing rules on greenhouse gas emitters.” In a 2016 Harvard Law Review article, Kavanaugh advised judges to “seek the best reading of the statute” in restraining agencies, to “help prevent a runaway executive branch that exploits ambiguities in governing statutes to pursue its broad policy aims, even in situations where Congress has not enacted legislation embodying those policies.”
That, of course, was in 2016 when it was the Obama administration attempting to govern with a totally dysfunctional Congress. Kavanaugh “has rejected a wide variety of federal regulations and sought to rein in agencies, according to an Associated Press review of his 12 years on the D.C. appeals court, along with other writings and speeches. He also has displayed skepticism of independent federal agencies that are not answerable to the president.” Again, back to executive authority. There’s an inherent contradiction here highlighted by the example of the Consumer Financial Protection Bureau.
In a case challenging the CFPB’s constitutionality, Kavanaugh argued in dissent that the way Congress had explicitly designed the bureau—there’s the Congress, putting it down in statute—was unconstitutional because it didn’t give the executive (in this case Trump) the authority to fire its director. He lost that battle, with the full court upholding the bureau’s structure.
Kavanaugh is also opposed to the FCC regulating net neutrality, of course. Not at all shockingly, there’s one area of government intervention he champions: he argued that the Trump administration was right to deny a 17-year-old immigrant’s request for an abortion. “The Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion,” he wrote. The Government just doesn’t have a permissible interest in protecting the environment or an open internet. Uteruses and vaginas, okay to interfere. Industrial pollution? Nope—not the government’s job.