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And the nominee is . . . Judge Kavanaugh

So it was Judge Kavanaugh. I haven’t studied his opinions, but from what I know of him Kavanaugh is very smart and an originalist. As compared to the other potential nominees, Kavanaugh also had the advantage of many years on the bench. You appear to know what you are getting with Brett Kavanaugh.

One of the obvious problems for confirmation is that Kavanaugh served on Ken Starr’s staff. As Senator Mitch McConnell reportedly told President Trump, Democrats might try to delay the confirmation vote to review many thousands of pages of records from the Starr investigation. In the next couple of months, we should expect to hear quite a lot about Bill Clinton and Monica Lewinsky. Of course, some of Starr’s (and perhaps Kavanaugh’s) behavior regarding Clinton might look different these days to a lot of people who formerly opposed the Independent Counsel.

In looking over my posts over the past years, I realized that I wrote four posts about Judge Kavanaugh – two (here and here) on whether the Constitution guarantees the executive branch prosecutorial discretion and two (here and here) on Kavanaugh’s opinion holding that the removal provisions of the Consumer Protection Financial Agency were unconstitutional. That’s very likely way more than on any other lower court judge. In two of the posts, I largely praised arguments made by Judge Kavanaugh; in two, I criticized his arguments.

I agreed with Kavanaugh’s opinion holding that the Director of the Consumer Financial Protection Bureau could not be made removable only for cause. I wrote:

Of course, Supreme Court precedent has allowed removal restrictions on executive officials since at least Humphrey’s Executor.  But as Judge Kavanaugh notes, no significant Supreme Court precedents or long standing practice allows removal restrictions on single headed agencies. Instead, these restrictions have been limited to multi-member commissions. Thus, there is no clear precedent on point.

One could, of course, extend Humphrey’s Executor and other precedents to single headed agencies, but the question is whether the courts are required to do so.  It is by no means clear that they are. In Free Enterprise Fund v. Public Company Accounting Oversight Board, Chief Justice Robert’s decision largely followed the type of analysis applied by the D.C. Circuit. Roberts described the removal authority of the President as flowing from the Constitution. He described the permissibility of removal restrictions as coming from precedent.  Since the removal restriction in that case was not covered by precedent, the opinion followed the original meaning.

Moreover, the D.C. Circuit’s attempt to distinguish the precedent makes sense. The court noted that the separation of powers operates to place checks on agency officials. Those could be provided by the President (when there were no removal restrictions) or by the other commission members (when there were removal restrictions). Thus, not extending the precedent to a single-headed agency made sense.

In the other posts, I criticized Kavanaugh’s claim that the President enjoys constitutional power over prosecutorial discretion. That is, I believe that the Constitution allows Congress to take away the executive branch’s prosecutorial discretion, although it is hard to do in practice. Here is what I had to say about one of Kavanaugh’s arguments:

One argument, made by Judge Kavanaugh, is that the pardon power supports such discretion:

The President may decline to prosecute certain violators of federal law just as the President may pardon certain violators of federal law. . . . In light of the President’s Article II prosecutorial discretion, Congress may not mandate that the President prosecute a certain kind of offense or offender. The logic behind the pardon power further supports that conclusion. As has been settled since the Founding, the President has absolute authority to issue a pardon at any time after an unlawful act has occurred, even before a charge or trial. So it would make little sense to think that Congress constitutionally could compel the President to prosecute certain offenses or offenders, given that the President has undisputed authority to pardon all such offenders at any time after commission of the offense.

Well, maybe, but I think the argument goes in the other direction. The pardon power and the power of prosecutorial discretion are distinct powers. That the Constitution gives one does not mean it gives another. If the President wants to protect an individual from prosecution, then he must actually exercise the pardon power.

This argument is reinforced by the fact that there was private prosecution of crimes in both England and in the United States at the time of the Constitution. Perhaps the executive could exercise the pardon in those cases, but that does not mean he had the power to exercise prosecutorial discretion.

Based on what I know, Judge Kavanaugh is a smart originalist. That should make him a first rate Justice.

Reader Discussion

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on July 10, 2018 at 10:42:53 am

Mike:

Square this one for me, if you would.

If it is accepted that a *prosecutor* has prosecutorial discretion, and a prosecutor being an agent of the Executive Branch, how can it be that the Executive does NOT have such discretion.
Yes, the pardon power would appear to make the discretion superfluous; but when the *agent* has the power, does not that agent derive his power from the principal - the Executive?

BTW: did anyone else feel uncomfortable with last nights nomination "ceremony"?
I say again, this nation was far better off when the overwhelming preponderance of the citizenry could not name a single Supreme court Justice. OMG, we are once again *celebrit[izing] a government functionary.

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gabe
on July 10, 2018 at 12:03:45 pm

Does the constitution permit prosecutorial discretion or does the discretion arise from legislative indifference? If the latter establishes the principle, then removal of the discretion can occur. Furthermore, a pardon has a different effect on the individual charged than a refusal or failure to prosecute. The pardon removes the charge. This difference in the effect on the individual seems to suggest different powers. Judge Kavanaugh, because he didn't address the effect on the individual charged seem to have dressed a narrow reading of the constitution in wide reading clothing.

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Erinie
on July 10, 2018 at 12:21:10 pm

Let us suppose that the pardon power does imply a lesser power to not prosecute someone in the first place (many scholars like Akhil Amar have recognized this lesser power). Still, that would not support the kind of vast prosecutorial discretion endorsed by Judge Kavanaigh. Here’s why.....

Everyone including Kavanaugh acknowledges that the pardon power is limited to pardoning offenses that have already occurred. So, the President is powerless to pardon future offenses, and thus to essentially give a license for future lawbreaking. So the same must a.pply to any prosecutorial discretion that is implied by the pardon power.

That is, any pardon-power-based prosecutorial discretion must not give a license to commit future offenses. It must not suggest that a law is constitutional, but lousy to such an extent that people should feel free to safely violate it without fear of prosecution.

This is not a minor distinction. Exercising prosecutorial discretion on a case-by-case basis to promote justice is very different from dispensing with laws that the president does not like. It would also be enormously disruptive if we start allowing each incoming president to effectively cast an absolute veto on all the criminal laws that the opposing party supports, without even a congressional majority to implement such an upheaval.

Criminal laws are typically enacted to protect people from harm by other people. So, it’s wrong to assume that such laws diminish liberty, and that those laws should therefore should be freely dispensed with by a president. That’s why I would not like Judge Kavanaugh’s theory of prosecutorial discretion even if it had a solid basis in the Constitution —- which it does not.

I support his confirmation, but hope he will be questioned about his notions about prosecutorial discretion. And will revise them.

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Andrew Hyman
on July 10, 2018 at 12:24:14 pm

Mr. Gabe,

Good points. Indeed, isn't there now precedent for even a non-prosecutorial agent exercising prosecutorial discretion when Comey publicly pronounced that HRC use of a private server did not rise to the level of a prosecutable crime?

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Paul Binotto
on July 10, 2018 at 12:30:45 pm

Mr. Gabe & Mr. Hyman make some interesting points.

Open question: Where does "Cole Memo", "written in 2013 by namesake Obama Deputy Attorney General James Cole, “that said marijuana businesses would not be prosecuted under federal law so long as they comply with state law.” fit in with the assertions advanced here?

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Paul Binotto
on July 10, 2018 at 12:39:18 pm

Regarding marijuana prosecution, there are other sources of prosecutorial discretion besides the pardon power. First, there is simple necessity due to lack of prosecutorial resources; if the president cannot prosecute all drug crimes because there are not enough prosecutors or judges or jails, then it makes sense to focus on the most harmful drugs like heroine and cocaine. Second, the President also has some discretion to not enforce laws that he thinks are unconstitutional, and Justice Thomas made a persuasive argument in the Raich case that not all marijuana production and use fall within the Commerce Clause.

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Andrew Hyman
on July 10, 2018 at 12:44:20 pm

There are other well-established sources of prosecutorial discretion besides the pardon power. First, there is the simple necessity to prioritize due to lack of prosecutorial resources (e.g. not enough prosecutors or jails or judges). Second, if a president plausibly thinks a law is unconstitutional then he has discretion to not enforce it, even if the courts say it’s constitutional (see the Raich case).

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Andrew Hyman
on July 10, 2018 at 13:05:24 pm

Thanks for your reply. Its not certain to me that the Cole Memo reflects either a prioritization of resources, or an Executive conclusion that the specific law is unconstitutional, but rather a deference or surrender of primacy to the state, (if the Executive possess the power to even do that), and a decision to enforce a federal law in an uneven manner; selectively only enforcing it in those states where marijuana use is illegal. Is this the case by case discretion envisioned?

Even if it was the decision that the law is unconstitutional (in essense, it should constitutionally be left to the several states), doesn't the selective manner of enforcement create constitutional issues?

Interesting discussion!

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Paul Binotto
on July 10, 2018 at 13:06:34 pm

Andrew:

I agree with your first comments. I should note, however, that i was not asking about "discretion" under some presumed sub-authority of the pardon power; rather, i was asking if an Executive, whose agents, say the AG, or a DOJ prosecutor, has such discretion, how is it that under his Executive Authority, that the Executive does not?

Also, agree and have so advocated that should the Executive think a law unconstitutional, he ought not to enforce.

Now are we prepared to accept the obverse?
Were the courts to deem a law unconstitutional, and the Executive (or the Legislative) sincerely, and not without some foundation, believe it to be constitutional, ought not those Branches resist (ha, now that is a word pregnant with present meanings) that juridical determination and continue to enforce the Law.

Ugly - perhaps; but i would say it is less *ugly* when considering the tendency of lower court jurists to impose "national" injunctions. such a stance by the Executive may serve as notice to courts to confine themselves to their judicial duties and not arrogate to themselves the Legislative or Executive powers.

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gabe
on July 10, 2018 at 13:14:24 pm

Paul, I don’t know enough about the Cole Memo to answer, except to say that dispensing with a federal law in one state but not another is not something that would be valid under the Pardon Power. Incidentally, DACA is another situation where the Obama Administration was criticized for going beyond legitimate prosecutorial discretion.

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Andrew Hyman
on July 10, 2018 at 13:23:57 pm

I think the theory of the Unitary Executive posits that any power of executive branch officials is shared by, and can be overridden by the president. In his blog post, I don’t think Prof. Rappaport was taking any position about that.

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Andrew Hyman
on July 10, 2018 at 13:30:01 pm

Interesting.

Btw a closer reading of the Cole Memo (Here: https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf ) does cite (at least as partial justification) the efficient use of resource allocation as a consideration in not prosecuting federal cannabis laws in those states where its production, sale, and use has been legalized, under the pretext (to be determined case by case) that those same states will have also necessarily enacted a robust enforcement and regulatory scheme to address the same purposes contained in, or as the basis of the federal statute.

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Paul Binotto
on July 10, 2018 at 19:00:42 pm

The comments on this commentary have focused on the matter of Judge Kavanaugh's view of the President's prosecutorial discretion, primarily the power NOT to prosecute. As I recall, President Obama ordered the DOJ not to enforce (prosecute) immigration laws against entire categories of illegal aliens, and Obama's DOJ notoriously failed to prosecute rather flagrant violations of federal civil rights law by Black Panthers who openly intimidated citizens seeking to vote. And, of course, most recently we have the example of the Obama FBI/DOJ failing to prosecute (even to investigate properly) the Clinton server/email crimes. So we do have important recent examples of prosecutorial abuse in failing to enforce the law.

Yet, the widespread public perception of federal prosecutorial abuse is of alleged abuse in DOJ's initiation of investigations and its pursuit of prosecutions of cases which, allegedly, should not have been prosecuted. The most current example of that is the Russian collusion investigation and the prosecutions arising from it thus far. Other recent examples are the cases of Senator Stevens and Enron, both discussed in the book, "License to Kill."

Yet, based on the data and its analysis it would seem that those spectacular cases are the uncommon exception and that the rule for DOJ and the numerous US Attorneys is that in proceeding with investigation and prosecution abuse is very uncommon, if not rare.
Here is a recent law review article which makes those points. Click on the abstract from which the full article can be downloaded: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3206643

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Pukka Luftmensch
on July 10, 2018 at 20:44:28 pm

Yep, in fact, if I recall, the book is called "Three Feloniesd A Day' wherein the unsuspecting *suspect is put through the wringer by prosecutors exercising thier discretion to prosecute a bleeping violation of - well, who knows what! Of course, all in the interest of justice.

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gabe
on July 13, 2018 at 17:16:12 pm

I'm no lawyer, but ....

with regard to discretion, why has nobody here mentioned the "take care" clause, in the constitution? Shouldn't it come into play in situations like the institution of DACA? My impression is that DACA (and DAPA) did not merely enact a "priority" scheme, but announced a de facto (and arguably a de jure) nullification of the deportation provisions of existing law. I understand the necessity to prioritize, but it was clear that the president did not want the law enforced, and scarce resources were not the genesis of the programs.

I don't think it is "discretion" when the executive expresses disapproval of the law itself, and in fact announces that it is effectively void.

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Chris Lynch

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.