Acting Attorney General Once Declared Courts ‘Inferior’ and Criticized Supreme Court’s Power
Posted November 8, 2018 3:06 p.m. EST
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 candidate Q&A when he sought the Republican nomination for senator in Iowa in 2014, Whitaker indicated that he shared the view among some conservatives that the federal judiciary has too much power over public policy issues. He criticized many of the Supreme Court’s rulings, starting with a foundational one: Marbury v. Madison, which established its power of judicial review in 1803.
“There are so many” bad rulings, 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.”
Whitaker lost the 2014 primary to Joni Ernst, who went on to win election to the Senate. But on Wednesday, he vaulted to power when President Donald Trump fired Attorney General Jeff Sessions and appointed Whitaker as the acting attorney general, putting him in charge of the Justice Department.
Because Trump installed Whitaker as the nation’s top law enforcement official without undergoing the vetting process of a Senate confirmation hearing, his answers to the 2014 candidate questionnaire, published by Jacob Hall on the Caffeinated Thoughts website alongside answers by the other Republican primary contenders, offer a rare window into how he thinks about legal issues.
Hall said he interviewed Whitaker over the phone, writing down his answers. Whitaker holds strongly conservative views across a range of issues, his answers revealed.
His 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 Whitaker also criticized famous decisions in which the Supreme Court declined to strike down laws that conservatives do not like, from 1930s cases involving President Franklin D. Roosevelt’s New Deal programs to the 2012 case in which the court declined to strike down President Barack Obama’s health insurance law.
“We’ll move forward from there,” he said, “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 Tribe, a Harvard Law School constitutional law professor, said that 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, Tribe said. Because the attorney general oversees decisions about which laws the Justice Department will defend and can decide which not to enforce, he said, Whitaker’s views likely would 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,” Tribe said.
In the 2014 interview, Whitaker also expressed a range of other conservative views.
He is likely to hold fast to Sessions’ 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 Sessions, the department sided with the plaintiffs instead of fighting to keep the law intact. Whitaker’s 2014 views on the insurance law suggests he will be unlikely to change that position.
“We need to do everything we can to repeal it, defund it, delay it — we need to do whatever it takes,” Whitaker said of the Affordable Care Act. “It’s having an incredibly negative impact on our economy. What can we do? We need to get a majority in the House and Senate and we need to get this president to change his mind. We need the people to agree with us that it’s such a negative, long-term impact on our economy and it has to be undone.”
He also signaled opposition to abortion rights, saying that he thinks “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 Iowa’s legislature had not pushed back against a state Supreme Court ruling in 2009 that permitted same-sex couples in Iowa to marry.
“Here in the state of Iowa, we can’t even get our elected officials to do anything about it and that’s really frustrating,” he said. “It’s affecting our military. There are chaplains in the military under a lot of pressure to go against their religious beliefs.” Whitaker voiced a hard line on immigration, saying he did not believe in “amnesty” for unauthorized 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 U.S. attorney for the Southern District of Iowa during the second term of the Bush administration.
“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 think mass shootings justified more restrictive gun-control laws, saying the problem was mental illness and that “I don’t think infringing on Second Amendment rights will prevent those types of events.”
And Whitaker 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, 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 U.S. 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.