Lee: What's the threshold of delegation?
Lee: Some delegation already occurs, and where do we draw the line?
Kavanaugh: Under current precedent, the Supreme Court has allowed some delegation. It has a doctrine on the non-delegation principle. The line is debated but there is precedent that suggests that there is a line at which Congress has gone too far.
Kavanaugh: Supreme Court has a doctrine on the non-delegation principle, and there is precedent on that issue.
Next term the court will hear a case presenting a non-delegation challenge, Gundy v. United States.
Lee: Do you have a favorite among the Federalist Papers?
Kavanaugh: I like a lot of Federalist papers. 78: role of judiciary. 69: presidency is not a monarchy. 10: factions in America and explains that separation of powers would prevent factions from gaining all the power.
37 & 39: laws can become liquidated by historical practice over time
47: accumulation of all power in one body is definition of tyranny. 51: if men were angels, we wouldn't need government
Lee: How were you informed by Federalist 51, this idea that government is an exercise in understanding human nature, if humans were not imperfect, then we wouldn't need all these rules?
Kavanaugh: The way we deal with imperfection while having a government is by dividing that government.
Kavanaugh: This is also why we have a jury system. We didn't trust a judge all on his own. This recognizes that we're imperfect.
Lee is saying that he has a previous order from Grassley (not here) for a 10-minute break.
Grassley just graveled us in, and Klobuchar, D-Minnesota, is up.
Klobuchar: Do you have personal objection to release of documents from time as staff secretary?
Kavanaugh: That's a decision for the executive branch. It's not my role to say one way or the other.
Klobuchar: Because we are not able to review certain documents, is there anything in them that you'd think we'd like to know?
Kavanaugh: Those documents are President Bush's documents. I have 12 years of judicial record.
Klobuchar: You said rushed decisions aren't always the best. Do you think a good judge would grant continuance to someone who received 40,000 documents the day before trial?
Kavanaugh: That's a committee decision.
Kavanaugh: It's not for the nominee to decide.
Kavanaugh: I was making proposals to be considered, I wasn't taking constitutional positions.
Kavanaugh: What counts as an impeachable offense is a decision for Congress.
Klobuchar: How can we figure out what's dastardly or not, if we can't even investigate it?
Kavanaugh: prosecutorial discretion is well recognized.
We have a number of people in the audience wearing purple shirts with different slogans. I wonder if we will have some outbursts.
Kavanaugh -- For example, as to marijuana laws, executive could decline to enforce them.
Klobuchar moves to Texas case on pre-existing conditions, taking position that this part of Affordable Care Act is unconstitutional. If it's found constitutional, could president take position not to enforce?
Kavanaugh: That's a pending case, I can't speak about it.
Klobuchar: Could the president choose not to implement the part of the ACA that requires coverage of pre-existing conditions? Kavanaugh: Pending case, can't comment
Turns to Kavanaugh's dissent in PHH v CFPB, criticizing independent agencies as a "headless fourth branch."
Kavanaugh: I did not say the CFPB had to stop operating. My concern was with the structure of having a single head.
Kavanaugh says structure of CFPB unconstitutional, because it had a single-member head, and his remedy would have been to make that person removable at will.
Klobuchar: What about other agencies with single heads, like Social Security Administration?
Kavanaugh: Agency could continue operating, but head of agency would be removable at will not for cause, to remedy constitutional flaw.
Klobuchar: Other agencies are headed by one person, like the Social Security Administration. [Two abortion-related interruptions.]
Kavanaugh says most independent agencies have multiple members and are not affected.
Klobuchar: You have been making the argument that Congress has to step in. But in this case, after a major financial crisis, Congress did step in.
Klobuchar: You quoted Hamilton yesterday as saying that the rules of judicial interpretation are rules of common sense. It doesn't make sense for me to have you put your judgment in place of Congress.
Submit Event
