Sanders wrong on Kavanaugh

After President Donald Trump nominated Brett Kavanaugh for the U.S. Supreme Court, Democrats highlighted bits of his paper trail on the D.C. Court of Appeals to galvanize opposition.

Sen. Bernie Sanders, I-Vt., called out Kavanaugh’s generous interpretation of the powers granted to the president by the Constitution.

“Brett Kavanaugh, contrary to 200 years of Supreme Court precedent, believes a president ‘may decline to enforce a statute . . . when the president deems the statute unconstitutional,’” Sanders wrote in a Facebook post.

Sanders cited Marbury vs. Madison, one of the most famous Supreme Court cases in history, as evidence that presidents have to enforce the law. The case states that “it is emphatically the province and the duty of the Judicial Department to say what the law is.”

Does Kavanaugh believe the president should possess powers denied to him by 200 years of Supreme Court precedent? That’s a stretch.

In a footnote to his dissent on

Seven-Sky vs. Holder, a 2011 D.C. circuit case that challenged the individual mandate of the Affordable Care Act, Kavanaugh wrote:

“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.”

Kavanaugh’s footnote was an offhand remark explaining why the court shouldn’t have been considering the case, given that the president might not even enforce the individual mandate.

Whether and when a president may refuse to enforce a statute he deems unconstitutional is a complicated question about which legal scholars disagree, but presidents have declined to enforce laws in the past.

“As a practical matter, there is little doubt that the president sets law enforcement priorities, and that some laws will be vigorously enforced and others will not,” said Sarah Duggin, a professor at the Columbus School of Law. “It is also true that at various times in our history, presidents have declined to enforce laws they deemed unconstitutional.”

The Supreme Court has never dealt with a case where a president “asserted a constitutional power to refuse to enforce a statute on the ground that it was unconstitutional,” said Mark Tushnet, a law professor at Harvard University.

The part of Kavanaugh’s statement that may clash with Marbury vs. Madison is that the president may consider something unconstitutional even if it has already been deemed constitutional by a court. If he was talking about the Supreme Court, Duggin said it “becomes very problematic.”

Others argue that the president has the duty not to enforce laws he deems unconstitutional.

Akhil Reed Amar, a professor at Yale Law School, believes the executive branch is also bound to the constitution and may have the final say if the president still believes the statute is unconstitutional.

“Kavanaugh makes a strong version of the claim, and it’s probably a minority position among professors, but it’s never been definitively settled by the Supreme Court,” Kermit Roosevelt, constitutional law professor at Penn Law School, said.

Our ruling

Sanders said Kavanaugh’s belief that a president “may decline to enforce a statute ... when the president deems the statute unconstitutional” is “contrary to 200 years of Supreme Court precedent.”

In practical terms, presidents have indeed declined to enforce statutes they found unconstitutional. The question has never come before the court, however. Marbury vs. Madison declared that the Supreme Court was the ultimate authority on the law, but law experts disagree on whether that would supersede the president’s own finding of unconstitutionality.

We rate this statement Mostly False.