Would a Justice Kavanaugh Crown Trump a King?

Concern has been expressed that Senate Republicans are acting at breakneck speed to confirm Appellate Court Judge Brett Kavanaugh to the Supreme Court. Democrats have requested–but not yet obtained–copies of documents that Judge Kavanaugh wrote as opinions or handled as Staff Secretary in the George W. Bush administration.

Democratic senators have raised questions about the nominee’s opinion on warrantless wiretapping, torture policy, abortion, and same-sex marriage. While all of these subjects are important and should be explored, there is an underlying legal theory of executive power that has received less attention but could be the most important matter a Justice Kavanaugh might be called on to decide.

The so-called unitary theory of executive power is as obscure as it is controversial. It is a judicial viewpoint that proponents argue is found in Article II of the Constitution: “The executive power shall be vested in a President of the United States of America.” Those words have been variously interpreted to theoretically invalidate any statute denying the president “exclusive control” over a “purely executive” power and thus deemed a violation of the principle of the separation of powers in the Constitution.

Other supporters of the theory take a more extreme view. They consider independent government regulatory agencies as illegitimate as they were structured to insulate them from presidential control. They believe congress has no power to demand information from any part of the executive branch and that the executive power, under the Constitution, gives the president all that power unchecked by congress or the courts.

President George W. Bush was a leading proponent of the theory, referring to it in more than 161 bill signing statements that accompanied his signature approving legislation. Bush’s signing statements stated he had “the power to set aside the laws when they conflict with his legal interpretation.” Because Kavanaugh was intimately involved with the process that generated these signing statements, it is important that the Senate determine Kavanaugh’s views regarding this radical doctrine.

President Trump has been criticized for his failure to understand the fundamental precepts of America’s constitutional system with its doctrine of separation of powers, the limitations placed on a president, and the foundational rule of law. For example, he recently asserted he could personally take over the Special Counsel investigation into possible Russian influence in the 2016 election and his own role in it “if I wanted to.”

But what if his critics are wrong and Trump has all the powers he thinks he ought to have. If the president was the only one who could determine what presidential powers existed, not only could the president act when congress had not spoken on a given topic but also in the face of congressional opposition his action would be considered to be constitutional. Richard Nixon pretty well summed up the theory this way: “When the president does it, that means it’s not illegal.”

The proponents of the unitary theory of executive power have constructed an alternative constitution much like Trump’s use of alternative facts. If that sounds scary, well, it is. It is only a matter of time before a case comes before the Supreme Court in which the application of the unitary theory of executive power will be decisive. When faced with such a monumental decision, would a Justice Kavanaugh likely cast his vote in codifying the theory into law, and by doing so, hand President Trump the keys to the kingdom and make him, effectively, a king? Senators should find out the answer to that question before they vote on his confirmation.

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Tom Coleman is a former Republican Congressman from Missouri and has served as an adjunct professor at New York University’s Robert F. Wagner Graduate School of Public Service and at American University.