Acting Attorney General Once Declared Courts ‘Inferior’ and Criticized Supreme Court’s Power – The HabariTimes Online
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Acting Attorney General Once Declared Courts ‘Inferior’ and Criticized Supreme Court’s Power

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Acting Attorney General Once Declared Courts ‘Inferior’ and Criticized Supreme Court’s Power

WASHINGTON — The acting attorney general, Matthew G. Whitaker, once espoused the view that the courts “are supposed to be the inferior branch” and criticized the Supreme Court’s power to review legislative and executive acts and declare them unconstitutional, the lifeblood of its existence as a coequal branch of government.

In a Q. and A. when he sought the Republican nomination for senator in Iowa in 2014, Mr. Whitaker indicated that he shared the belief among some conservatives that the federal judiciary has too much power over public policy. He criticized many of the Supreme Court’s rulings, beginning with a foundational one: Marbury v. Madison, which established its power of judicial review in 1803.

“There are so many” bad rulings, Mr. Whitaker said. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues.”

The interview was among evidence that shed new light on Mr. Whitaker’s views, including disparagement of the Russia investigation, which he now oversees, and an expansive view of presidential power. Congressional aides, journalists and other observers scoured his record after Mr. Trump fired Attorney General Jeff Sessions on Wednesday and replaced him with Mr. Whitaker, instantly raising questions about whether the president wanted a loyalist in charge at the Justice Department with the power to end the Russia investigation.

Though Democrats called on Mr. Whitaker to recuse himself from overseeing the investigation into Russian interference in the 2016 election and whether any of Mr. Trump’s associates conspired, the Justice Department has said he will supervise Robert S. Mueller III, the special counsel. Past statements suggest that Mr. Whitaker has already made up his mind that the investigation will fail to show that Mr. Trump or his advisers aided Russia’s disruption.

“The truth is there was no collusion with the Russians and the Trump campaign,” Mr. Whitaker said in an interview on “The Wilkow Majority,” a conservative political talk radio show, in summer 2017. His remarks were reported earlier by The Daily Beast.

“There was interference by the Russians into the election, but that is not collusion with the campaign,” he added, views that dovetailed with Mr. Trump’s longstanding complaints about the investigation. “That’s where the left seems to be just combining those two issues.”

He also argued last year that the president could not have obstructed justice by asking the F.B.I. director, James B. Comey, to end an investigation into his first national security adviser, a broad notion of executive power that Mr. Trump’s lawyers have also embraced. Mr. Whitaker dismissed the outcry over Mr. Trump’s request as overkill during a radio interview in June 2017 on the conservative “David Webb Show.”

“This hyperventilation of what we see here is just, I don’t think, sustainable based on these facts,” he said in comments reported earlier by Mother Jones. And he once said Mr. Mueller’s appointment “smells a little fishy,” according to a radio segment unearthed by CNN.

While the Justice Department was treating Mr. Whitaker’s installation as acting attorney general as a done deal, prominent legal experts insisted that it was unconstitutional. Justice Department officials have pointed to the Vacancies Reform Act, a law that Congress passed in 1998, which set out the procedures that Mr. Trump used to name Mr. Whitaker as acting attorney general without Senate confirmation.

But only someone whom the Senate has confirmed can run the Justice Department, even on an interim basis, according to an opinion column in The New York Times by Neal K. Katyal, a former acting solicitor general in the Obama administration, and George T. Conway III, a conservative lawyer who is married to Mr. Trump’s adviser Kellyanne Conway.

“We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design,” they wrote, adding, “For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.”

Other aspects of Mr. Whitaker’s record also came under sharper scrutiny on Thursday as Mr. Whitaker huddled with Justice Department officials in a lengthy briefing about its major cases and other activities.

Before joining the Trump administration last fall, Mr. Whitaker sat on the advisory board of a patent marketing company in Florida that was shut down and ordered this year to pay consumers nearly $26 million. The Federal Trade Commission accused the company, World Patent Marketing, of bilking thousands of customers who believed they were receiving patents.

But Mr. Whitaker’s answers to the 2014 Senate candidate questionnaire offered the broadest look at his approach to government and the law, showing that he holds strongly conservative views across a range of issues. The answers were published by the journalist Jacob Hall on the Caffeinated Thoughts website alongside answers by the other Republican primary contenders.

Mr. Hall said he interviewed Mr. Whitaker over the phone, writing down his answers. A spokeswoman for the Justice Department declined to comment.

Mr. Whitaker’s criticism of Marbury aligned with the view of some conservatives that the 1803 case — or at least how it came to be interpreted — gave the courts too much power to strike down laws. But Mr. Whitaker also criticized famous decisions in which the Supreme Court declined to strike down laws that conservatives do not like, including 1930s cases involving President Franklin D. Roosevelt’s New Deal programs and the 2012 case in which the court declined to strike down President Barack Obama’s health insurance law.

He also criticized the Supreme Court for “all New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

Laurence H. Tribe, a constitutional law professor at Harvard Law School, said that Mr. Whitaker’s expressed views of the Constitution and the role of the courts “are extreme and the overall picture he presents would have virtually no scholarly support” and would be “destabilizing” to society if he used the power of the attorney general to advance them.

Simultaneously criticizing the Supreme Court’s power of judicial review while criticizing cases where it declined to strike down laws regulating economic and health insurance matters was a sign of an “internally contradictory” and “ignorant” philosophy, Mr. Tribe said. Because the attorney general oversees decisions about which laws the Justice Department will defend and can decide which ones not to enforce, he said, Mr. Whitaker’s views were likely to have faced sharp scrutiny even from Republicans in a confirmation hearing.

“He seems to think much of the fabric of federal law that is part of our ordinary lives violates the Constitution of the United States to which he is evidently going to take an oath,” Mr. Tribe said.

Mr. Whitaker’s 2014 interview also suggested that he is likely to hold fast to Mr. Sessions’s position in a lawsuit brought by Republican-controlled states seeking to have the Affordable Care Act’s insurance protections for people with pre-existing conditions struck down. Under Mr. Sessions, the department sided with the plaintiffs instead of fighting to keep the law intact.

“We need to do everything we can to repeal it, defund it, delay it — we need to do whatever it takes,” Mr. Whitaker said of the Affordable Care Act in 2014.

He also signaled opposition to abortion rights, saying that he believed “life begins at conception,” and to same-sex marriage rights, saying that “it’s traditionally been up to the churches and to God to define that.” He expressed frustration that the Iowa Legislature had not pushed back against a State Supreme Court ruling in 2009 that permitted same-sex couples in Iowa to marry.

Mr. Whitaker voiced a hard line on immigration, saying he did not believe in “amnesty” for undocumented immigrants who are already inside the country — he did not address the so-called Dreamers, or people brought to the United States as children — and talked about visiting the southwestern border while he was the United States attorney for the Southern District of Iowa during the second term of President George W. Bush.

“I was able to see what our border looks like and the fact it is under assault on a daily basis from people trying to bring illegal people and illegal drugs into our country,” he said. “What do I think the solution is? We need to secure the border first and then look at ways to reform the system, whether that’s getting rid of chain immigration,” in which migrants trace the paths of relatives or others they know to come to the United States, “or increasing the number of skilled-worker visas.”

He indicated that he did not believe mass shootings justified more restrictive gun control laws, and said he believed the federal government should play no role in public education.

“The Department of Education should be disbanded and the resources either returned to the taxpayers or put into the schools,” he said. “Bureaucrats in Washington, D.C., shouldn’t know how to better educate my kids than I do.”

On the issue of climate change, Mr. Whitaker said he was “not a climate denier,” but also said that while the globe may be warming and human activities may contribute, “the evidence is inconclusive” and “that’s very small and it may be part of the natural warming or cooling of the planet.” As a result, he said, he did not believe in regulations aimed at curbing carbon emissions that could “hamstring” the American economy.

“I don’t believe in big-government solutions to a problem that doesn’t appear to be that significant or quite possibly isn’t man-made,” he said.

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