Referred to as "unitary executive theory," the group raised concerns that Kavanaugh’s view of executive power would impact how he rules in cases touching on presidential powers.
"A justice's views - explicit or implicit - on what values matter most can be outcome determinative," the report states. "Judge Kavanaugh himself recognizes as much. All Americans should be concerned with the possibility of seating a new justice who prioritizes presidential power in a world where the president is determined to push that power as far as it can go."
Second Amendment and Judicial Philosophy
Sure to earn much scrutiny at Kavanaugh’s confirmation hearing next week is his 2011 dissent in a challenge of Washington, D.C.’s gun-registration law.
Though the Supreme Court had struck down the city's outright ban on handguns three years earlier in the landmark case Heller v. District of Columbia, the later case, aptly called Heller II, focused on D.C.'s ban on semiautomatic rifles as well as its registration requirement for all guns.
When his colleagues voted to uphold the revised law, Kavanaugh wrote in dissent that they erred in employing a balancing test, where the interests of the government were weighed against the interests of gun owners, rather than looking at the "text, history and tradition" of the Second Amendment and gun regulations.
Kavanaugh contended that the distinction drawn by the majority between semiautomatic handguns, which the Supreme Court held the city could not ban, and semiautomatic rifles was not a meaningful one.
More than a hint at how Kavanaugh might rule in a gun-regulation case at the Supreme Court, Georgetown University law professor Randy Barnett said the Kavanaugh dissent in Heller II opinion offers a clear example of the judge’s originalist judicial approach.
"I had a question about this because it was my perception that Judge Kavanaugh hadn't used the term originalist to describe himself on a number of occasions when he might have, but I've now, since he's been nominated, been able to satisfy myself that he really is and was an originalist, he just avoided using the label for some reason," Barnett said. "And that might be because of its negative connotations in certain circles, but the substance of his views are originalist - textualist and originalist."
In the dissent, Kavanaugh cites the original Heller opinion handed down by the Supreme Court, saying "the proper interpretive approach" for courts considering new technologies "is to reason by analogy from history and tradition."
"The constitutional principles do not change (absent amendment), but the relevant principles must be faithfully applied not only to circumstances as they existed in 1787, 1791 and 1868, for example, but also to modern situations that were unknown to the Constitution's framers," Kavanaugh wrote. "To be sure, applying constitutional principles to modern conditions can be difficult and leave close questions at the margins. But that is hardly unique to the Second Amendment. It is an essential component of judicial decision-making of our enduring Constitution."
Criminal Law
Before President Donald Trump announced Kavanaugh’s nomination on July 9, Shapiro expressed some reservations about the judge’s track record on criminal-law matters. After reviewing more of his opinions, however, Shapiro now says one can distinguish between Kavanaugh’s views on issues of national security and those involving domestic criminal rights and procedure.
To illustrate this, Shapiro pointed to Kavanaugh's statement after the D.C. Circuit decided not to rehear en banc Klayman v. Obama, a challenge to the NSA's collection of internet and telephone metadata. Explaining why he sided against a rehearing, Kavanaugh wrote that the plaintiffs challenging the program had not shown a likelihood of success.
Citing lawful government activities, like checkpoints for drunken drivers and airport-security screenings, Kavanaugh wrote the government has authority to conduct broad searches when it shows a "special need" to do so.
"Even if the bulk collection of telephony metadata constitutes a search, the Fourth Amendment does not bar all searches and seizures," Kavanaugh wrote. "It bars only unreasonable searches and seizures. And the government's metadata collection program readily qualifies as reasonable under the Supreme Court's case law.” (Emphasis in original.)
Shapiro contrasted this with Kavanaugh's dissent in United States v. Burwell, a criminal case involving a bank robber who was given an enhanced sentence because he committed a crime spree using a gun that could switch between automatic and semiautomatic.
The majority held the government did not need to prove the robber knew the gun he used was capable of firing automatically, but Kavanaugh disagreed, calling the principle of mens rea a "bedrock historical foundation" of the American and English legal system.
He noted defendants who use a semiautomatic weapon face a 10-year mandatory minimum, while those who use an automatic weapon face a mandatory 30 years in prison. This difference should mean the government must be held to higher standard, Kavanaugh wrote.
"The majority opinion holds that a person who committed a robbery while carrying an automatic gun - but who genuinely thought the gun was semi-automatic - is still subject to the 30-year mandatory minimum sentence," Kavanaugh wrote. "The majority thus gives an extra 20 years of mandatory imprisonment to a criminal defendant based on a fact the defendant did not know." (Emphasis in original.)
Shapiro said the contrasting decisions in these cases give him the sense that Kavanaugh, while deferential to the government in national-security cases, holds it to a high standard in “run-of-the-mill” domestic criminal matters.
The Legal Defense Fund report made a different observation, however, based on the case National Federation of Federal Employees - IAM v. Vilsack, in which Kavanaugh dissented from the majority’s striking down of a program that required random drug testing for federal employees who worked in special schools for at-risk youth.
Kavanaugh wrote the program was "narrowly targeted" and "common sense" because the employees were regularly interacting with many students who had a history of drug use, giving the government substantial reason to enact the program without violating the Fourth Amendment.
The Legal Defense Fund report says the case, combined with the Klayman statement and another criminal case involving a street search, shows Kavanaugh is willing "to downplay the intrusiveness of a search, especially in the context of drug-testing policies, law enforcement street encounters and mass surveillance."
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