Brett Kavanaugh would give Donald Trump unprecedented new powers.

Brett Kavanaugh would give Donald Trump unprecedented new powers.
by Jed Shugerman (Fordham Law School)

Does Brett Kavanaugh defer to precedent? The answer to this question could well determine the future of Roe v. Wade and reproductive rights in this country. Kavanaugh’s speeches and judicial opinions suggest that he would not defer to Roe as precedent, and that he would overturn it entirely.

Perhaps more surprisingly, he has hinted that he would essentially overturn the independence of the Federal Reserve and other vital independent agencies by handing control of them over to the president. And perhaps most disturbingly, Kavanaugh’s reverence of a Scalia dissent in a critical case about independent prosecutors—and the judge’s ideologically driven claims about that case—raises questions about how he treats precedent and whether he views the work of special counsel Robert Mueller’s office as appropriate.

It has never been a good idea to centralize the enormous power of the modern administrative state under one person. We are reminded every day how bad an idea that would be. And it is remarkable and extreme that Kavanaugh seems to think it is unconstitutional—under originalism or any theory of constitutional interpretation—to decentralize those massive executive powers, despite all the risks of self-dealing, cronyism, and partisan manipulations.*
It is important to appreciate that Judge Kavanaugh has a remarkably robust record on Roe and other major controversies. He’s not a stealth nominee. But his candid opinions and speeches played a role in getting the nomination, so it’s also fair to scrutinize them. A close reading of some of his major cases in the area of executive power shows a regular willingness to ignore precedent because he favors an ahistorical and extreme theory of presidential power. At the Supreme Court, this view could threaten the special counsel’s office and the independence of federal agencies like the Federal Reserve and the Federal Trade Commission. Independent agencies have been an important feature of the federal government for almost a century and a half, but Judge Kavanaugh has shown a willingness to jettison precedents that protect these agencies from presidential interference.

Two key features of such agencies are that 1) they are run by multimember bipartisan commissions and 2) the commissioners or officers cannot be fired at will by the president, but only for good cause. This structure is crucial for fostering expertise and long-term planning, insulated from party control and presidential meddling. Imagine if a president could meddle with the Fed to lower interest rates just in time for a re-election campaign, or pressure the Securities and Exchange Commission to benefit cronies and special interests. Independent agencies are designed to reduce presidential or partisan influence over currency and banking, Wall Street, trade policy, nuclear safety, and workplace and product safety, to name a few vital areas.

Even if Judge Kavanaugh is on the record signaling his opposition to major precedents like Roe, would he still respect precedent and set those leanings aside? Based on a reading of one of his most significant opinions and his answers in an American Enterprise Institute forum in 2016, Kavanaugh appears to not be particularly deferential to precedents, even canonical ones. For an ostensible originalist, Kavanaugh’s understanding of Anglo-American legal history is also flawed. He appears to have a further blind spot: a preference for centralized executive power and a deference to Scalia opinions, even if precedent and history do not support such conclusions.

On Wednesday, this revealing audio exchange from an AEI talk in 2016 with Judge Kavanaugh emerged:

Q: Can you think of a case that deserves to be overturned?

Judge Kavanaugh: Yes. (Laughter).

Q: Would you volunteer one?

Judge Kavanaugh: No. (More laughter, long pause). Actually, I am going to say one: Morrison v. Olson. It has been effectively overruled, but I would put the final nail in.

Morrison v. Olson was a 7–1 Supreme Court decision, written by Chief Justice William Rehnquist in 1988, upholding the Office of Independent Counsel as constitutional. In dissent, Justice AntoninScalia embraced the “unitary executive” theory, which asserts that the president has full control over the executive branch, especially in terms of the power to remove executive officers for any reason. Scalia believed the independent counsel was unconstitutional because judges selected the officer and the president did not have the power to remove that officer.

There was a reason Scalia was all alone in that dissent, though: He was wrong, and his historical assumptions were demonstrably wrong. Further, Morrison has not been “effectively overruled” as a judicial question, even if it has many critics and even if the Supreme Court has rarely relied on it since 1988.

Kavanaugh seems to go further and subscribe to a more extreme version of the unitary-executive theory, which would end the notion of independence in any government agencies. Trump defenders have used such a theory to argue that Trump could have fired FBI Director James Comey for any reason without it having constituted obstruction of justice. This version would also enable Trump to remove special counsel Robert Mueller, regardless of regulations protecting the special counsel’s office from at-will removal by the president or attorney general.

To see how far Kavanaugh might go with his unitary-executive theory, it’s important to examine his own rulings. Kavanaugh relied heavily on Justice Scalia’s lone dissent in Morrison v. Olson in a set of decisions on the Consumer Fraud Protection Bureau between 2016 and 2018. In PHH v. CFPB, Kavanaugh ruled (in my opinion, correctly) that the structure of the federal consumer watchdog violated the Constitution by saying the director could not be fired by the president, even for good cause. Even if he got the decision right, though, the breadth of his opinions is troubling. Kavanaugh questions the very existence of any job-security protections in independent agencies such as the CFPB.

Overturning this precedent would mean an end to the political independence of agencies in banking, finance, trade, nuclear security, and more.

In ruling against the CFPB’s structure, Kavanaugh cited Scalia’s lone dissenting opinion in Morrison v. Olson eight times in the initial panel decision and six times in his en banc dissent. As I’ve previously written, the Morrison dissent, which claimed government investigations and prosecutions were a “quintessentially” executive function, was starkly ahistorical. Among other things, it ignored the heavy role private prosecutions played in Anglo-American criminal law until the late 19th century as well as the role of Congress’ inherent contempt powers to prosecute nonmembers. As Asha Rangappa and I have pointed out, congressional Republicans have recently threatened to use subpoenas and contempt of Congress against the Department of Justice, underscoring how Scalia’s view of the unitary-executive theory in Morrison continues to be wrong.
Founding-era practices further undercut Scalia’s assumptions. Colonial prosecutors were often appointed by judges—not by executive officials—and many early state constitutions listed the prosecutors in the judiciary sections. Some of these constitutions gave legislatures or judges the power to appoint law enforcement officials. Virginia’s 1776 Constitution, drafted by James Madison, George Mason, and other founders, delegated to the legislature the power to appoint the attorney general and gave judges the power to appoint sheriffs, coroners, and constables. The Judiciary Act of 1789, meanwhile, gave federal judges the power to remove deputy marshals. Congress’ first draft of the Judiciary Act would have empowered the Supreme Court to appoint the attorney general, and district judges to appoint district attorneys. Congress deleted these provisions without explanation, but the draft showed that it wasn’t obvious to the founders that prosecution had to be an executive function.

So Scalia’s oversimplified history in Morrison was wrong. For Kavanaugh, it should be a problem that someone who claims to be an originalist has relied on demonstrably wrong historical assumptions. Even worse, Kavanaugh added this whopper in his footnotes:

Recall, moreover, that the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 to view the independent counsel system as an unwise and unconstitutional departure from historical practice and a serious threat to individual liberty.

Nearly universal consensus? There isn’t even a nearly universal consensus in the Federalist Society that Scalia was right. This is an exaggeration that further suggests Kavanaugh lives in an ideological bubble of highly motivated reasoning. Kavanaugh’s willingness to exaggerate in service of presidential power raises reasonable questions about his views of Mueller’s office, even if the special counsel’s office is more constitutionally defensible compared to the original Office of Independent Counsel.

As discussed, Kavanaugh’s indications that he’d go even further than Scalia’s dissent are even more unsettling. Critically, the judge has signaled that he’d overturn Humphrey’s Executor, an 83-year old canonical precedent that is a foundation for the modern administrative state. Overturning this precedent would mean an end to the political independence of agencies in banking, finance, trade, nuclear security, and more.

In Humphrey’s, the court ruled on President Franklin D. Roosevelt’s attempts to fire Federal Trade Commission Chairman William Humphrey because the president wanted to change course on trade and antitrust policy. But the FTC was designed as an “independent agency,” and by statute, the president could remove an FTC chair only for “inefficiency, neglect of duty, or malfeasance in office.” In other words, Roosevelt could remove Humphrey only for good cause, not because of policy differences. The Supreme Court ruled that Roosevelt could not remove Humphrey. This decision allowed Congress to protect agency officials from at-will removal if those officials have quasi-legislative or quasi-judicial roles, rather than solely executive roles.

Judge Kavanaugh is not fond of Humphrey’s, to say the least. In 2011, Kavanaugh wrote a concurrence in a D.C. Circuit ruling over a nuclear-waste controversy at Yucca Mountain. For 12 pages, Kavanaugh lambasted Humphrey’s specifically and independent agencies generally. He wrote that the Humphrey’s regime was undemocratic:

Because of Humphrey’s Executor, the President to this day lacks day-to-day control over large swaths of regulatory policy and enforcement in the Executive Branch. … Those and many other independent agencies have huge policymaking and enforcement authority and greatly affect the lives and liberties of the American people. Yet those independent agencies are democratically unaccountable—neither elected by the people nor supervised in their day-to-day activities by the elected President.

Kavanaugh went on to question the principle that agencies need independence to follow expertise “in an apolitical way.” He quoted a legal scholar trashing this critical precedent:“Humphrey’s Executor, as commentators have noted, is one of the more egregious opinions to be found on pages of the United States Supreme Court Reports.” He noted that the other cases checking presidential power decided around the same time “have long since been discarded as relics of an overly activist anti-New Deal Supreme Court.” Kavanaugh then argued that Humphrey’s is in tension with more recent Supreme Court precedent.

Ultimately, Kavanaugh shifted tone at the end of this extended sweeping critique:

All of that said, Humphrey’s Executor is an entrenched Supreme Court precedent, protected by stare decisis. The point of explaining its history and continuing repercussions here is not to suggest that the case should be overturned.

Considering the previous 12-page critique, including the quote about “one of the more egregious opinions” on the books, though, one might be forgiven for inferring that Kavanaugh thinks the Supreme Court should overturn Humphrey’s directly. Of course, a circuit judge needs to back down and acknowledge stare decisis after such a scorching of a Supreme Court precedent. But a justice would be unconstrained to take the next big step.

Kavanaugh also returned to his critique of Humphrey’s in the CFPB case. In a footnote in his 2016 decision and another footnote in his 2018 dissent, Kavanaugh cited critics of Humphrey’sand cast further doubt on the validity of independent agencies. He even addressed the potential effects of overturning Humphrey’s.

If Kavanaugh was simply offering the plaintiffs a potential route to preserve an unlikely claim with these footnotes, he could have simply dropped a single sentence. But instead, Kavanaugh wrote a short essay on the plausibility of ending the long-settled and vital 130-year institution of independent agencies.*

There is ambiguity in this noncommittal footnote, but if Kavanaugh is seriously considering striking down the structure of independent agencies in the Trump era—as his writings imply—he needs to explain this position and acknowledge the dramatic consequences. It would be an unpredictable and disruptive change in the executive branch, in banking, markets, energy, and major other areas of regulation. And the effect would be suddenly to give the president—President Donald Trump—a lot more power over all of these areas of modern life. Imagine if Trump decided to start firing the Fed Reserve board members or Federal Trade commissioners, then installing his loyalists. What if he fired Mueller? Where would Kavanaugh stand?

Interestingly, Kavanaugh cited a particularly colorful passage from Scalia’s Morrison dissent a few times over the course of his Morrison-heavy opinions. Here’s that full passage:

Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

Kavanaugh doesn’t come as a wolf, but he puts a lot of wolves in his citations and footnotes. To mix classic Scalia metaphors, he puts wolves in mouseholes. All of these citations force the question: How much would a Justice Kavanaugh really adhere to precedent? When Kavanaugh casually entertains overturning a nearly century-old canonical case with chaotic ramifications, he’s telling us, “Not much at all.” When he gives Scalia’s dissent more weight than the Morrisonmajority and plays with the idea of uprooting Humphrey’s Executor and 130 years of independent governmental agencies, we have to ask: What does that mean for Roe v. Wade,Mueller, the Fed—and other foundations of modern American life?* 

KEEP READING

Correction, July 19, 2018: Due to an editing error, this piece originally said that Judge Kavanaugh seems to think centralizing executive powers is unconstitutional. This article also originally described independent agencies as being 150 years old, not 130 years old, which is the correct age.