In 2013, President Trump’s Supreme Court nominee Brett Kavanaugh stated that it’s a “traditional exercise” for a president to ignore new laws passed by Congress if the White House believes they are unconstitutional. For Democrats, knowing Kavanaugh’s position on giving Trump total power makes the future look even more bleak.
Kavanaugh said that if the president signs a bill into law “and says these certain provisions in here are unconstitutional, and we’re not going to follow those provisions, that is a traditional exercise of power by Presidents.” This statement was in reference to President George W. Bush’s controversial “signing statements.” A signing statement takes place when a bill has been passed by Congress and arrives on the president’s desk and he signs it into law, but adds notes addressing sections of the bill he deems to be unconstitutional. Basically, a president can bypass laws passed by Congress without vetoing them, which would allow congress to override the president’s decision.
Bush’s use of signing statements were often condemned by critics for abusing power and ultimately ignoring laws passed by Congress. Bush objected to over 500 provisions in more than 100 pieces of legislation passed by Congress. Bush’s signing statements were often on legislation that discussed the war on terror, affirmative action programs and even bills that created basic qualifications for executive appointees. One of his most controversial signing statements took place while Kavanaugh was serving as the White House staff secretary. This particular signing statement was on a torture ban bill which outlawed the torture of detainees. In the statement, Bush declared he could override and bypass this new legislation.
In an Aug. 13, 2013, opinion Kavanaugh wrote, “If the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise.” He wrote a similar opinion in 2011. Sen. Chuck Schumer (D-NY) said, “Understanding the nature of his involvement in those actions is absolutely critical to evaluating the type of justice he would be on the bench. If Republicans continue to stonewall, the American people will wonder what they are hiding.”
Many allies of Kavanaugh have pointed to the fact that President Obama once said, “For nearly two centuries, Presidents have issued statements addressing constitutional or other legal questions upon signing bills into law.” However, a law professor at the University of Texas and CNN analyist Stephen Vladeck said:
President Bush wasn’t the first to use signing statements, but he used them more often than both his predecessors and successors, and, as importantly, he consistently used them to advance an aggressive theory of constitutional limits on Congress’ power to interfere with the Executive Branch that was largely a novelty.
Some Republicans, such as Senate Judiciary Charimain Chuck Grassley (R-IA), say Democrats are just attempting to delay Kavanaugh’s confirmation. Yet GOP Sen. Tom Thom Tillis (R-NC) said, “I want to learn about what he has done in the 307 opinions and his writings about his jurisprudence and whether or not he’s qualified to be in the role of the Supreme Court.”
On Aug. 2, Democrats demanded full access to all of Kavanaugh’s documents during his time in the Bush administration from 2003-2006. Also on Thursday, the Senate Judiciary Committee stood in front of a large wall of 167 boxes labeled “Kavanaugh records” in an attempt to illustrate Democrats are only attempting to stall the Supreme Court appointment. Tillis said, “If you were to stack up all these pages, it would be taller than the Big Ben, taller than the Statue of Liberty, taller than the Capitol Dome, and taller than the Taj Mahal. Here’s the reality: The same people that are asking for the documents oppose Judge Kavanaugh.”
While this demonstration amounted to little more than theater, they are right about the possibility of a delay in the vote to confirm Kavanaugh. If Democrats win the majority in Congress during the November midterm elections, and the vote to approve Kavanaugh to the Supreme Court is delayed until after midterms, it is likely his appointment would be denied. Fingers crossed.