July 10, 2018

Problems with Kavanaugh

The Atlantic = Kavanaugh seems most likely to make his mark are in two areas important to Washingtonians—executive authority and administrative law. As befits an executive creature, Kavanaugh’s decisions incline toward the “unitary executive” view of presidential power, which holds that Congress cannot set up federal agencies that are not under the direction and control of the president.

Slate - Kavanaugh has argued that the Obama-era network neutrality rules, which were rescinded by the current Federal Communications Commission under Trump appointee Ajit Pai, were unconstitutional because in his view the rules, which prevented internet service providers like Comcast and Verizon from blocking access to certain websites or slowing down speeds, violated the free-speech rights of internet providers.

The Hill - Rep. Justin Amash (R-Mich.) on Monday called President Trump Supreme Court nominee Brett Kavanaugh a “disappointing pick,” ripping the judge’s past rulings on surveillance issues. The congressman cited a 2015 opinion written by Kavanaugh while serving on the U.S. Court of Appeals for the D.C. Circuit, that found “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” Amash disagreed with that ruling saying it creates “a rubber stamp for the executive branch.” .... He also included a quote from Kavanaugh’s opinion in the case, stating “that critical national security need outweighs the impact on privacy occasioned by this program.”

The Hill - CNN's Jeffery Toobin said late Monday that partisan fights over Supreme Court nominees have only become more intense because "people were expected to die in their 50s" when the Constitution was written. The legal analyst added during an interview on the network that "the framers never contemplated that these terms would regularly go to 30-plus years as they do now." ....
"When the Constitution was written in the late 18th century, people were expected to die in their 50s," Toobin told CNN's Anderson Cooper.

Vox - In 2015, Kavanaugh dissented from the DC Circuit’s refusal to reconsider a religious liberty challenge to Obamacare’s contraceptive mandate en banc, or as a full court rather than a panel. He writes that he would rule in favor of the challenge, that the mandate unconstitutionally burdens religious freedom.

[He suggested] in the Obamacare case Seven-Sky v. Holder that a future president could choose to nullify Obamacare by just not enforcing it, writing, “Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”

Politicus USA - [At his press conference with Trump] Kavanaugh said with a straight face: "I have witnessed first hand your appreciation for the vital role of the American judiciary. No president has ever consulted more widely or talked with more people from more background to seek input about a Supreme Court nomination. Mr. President, I am grateful to you."

Reuters - Brett Kavanaugh ... is a long-time skeptic of business regulations, especially on rules limiting harmful emissions, although he has called global warming an “urgent” issue. ... Michael Brune, president of the Sierra Club, an environmental activist group, said Kavanaugh is “an extreme ideologue who has time and again proven himself hostile to common-sense environmental safeguards.”

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