Executive Power

Washington Post Symposium on Brett Kavanaugh's Jurisprudence

The Post has a symposium in which a a variety of legal commentators (myself included) discuss what they consider to be Judge Kavanaugh's most important opinions.


Judge Brett Kavanaugh.

The Washington Post has put up a symposium on Judge Brett Kavanaugh's jurisprudence in which various legal commentators discuss what they consider to be his most important opinions. The contributors include Yale Law School Prof. Akhil Amar, ACLU national legal director David Cole, and myself, among others. Here is an excerpt from my contribution, which focuses on Kavanaugh's recent dissent in PHH Corp. v. Consumer Financial Protection Bureau. Here is an excerpt:

Kavanaugh has written many insightful opinions, but the one that best exemplifies both the strengths and the weaknesses of his jurisprudence may be his recent dissent in PHH Corporation v. Consumer Financial Protection Bureau. The opinion showcases his careful reasoning, but also highlights a shortcoming of his devotion to "unitary executive" theory.

PHH… involves a challenge to the constitutionality of the Consumer Financial Protection Bureau, a powerful financial regulatory agency headed by a single director appointed by the president for a five-year term, during which he or she can only be removed "for cause." As Kavanaugh explains, the Constitution lodges all "executive" power in the hands of the president. Independent agencies such as the CFPB, he says, are "a headless fourth branch of the U.S. Government" that poses "a significant threat to individual liberty and to the constitutional system of separation of powers."

While the Supreme Court has upheld some independent agencies, the CFPB goes beyond those cases because it is headed by a single director. Kavanaugh fears that the "CFPB's concentration of enormous power in a single unaccountable, unchecked Director poses a far greater risk of .?.?. abuse of power, and a far greater threat to individual liberty, than a multimember independent agency."

But Kavanaugh does not consider the possibility that concentrating even greater power in the hands of a single person — the president — also poses grave risks. The "unitary executive" theory underlying his opinion made sense in a world where the executive branch was confined to the comparatively narrow range of powers granted by the original meaning of the Constitution. It is far more problematic today, including on originalist grounds….

Federal agencies now regulate almost every aspect of American life. If the president has near-total control over them, he or she has much greater power than originally granted — more than can safely be entrusted to any one person. So long as the executive wields authority far beyond the original meaning, Congress should be allowed to insulate some of it from total presidential control to prevent excessive concentration of power.

Interestingly, famed constitutional law scholar Akhil Amar also focuses on PHH in his contribution to the symposium. His assessment of Kavanaugh's opinion is more favorable:

I seldom assign my law students to read recently decided lower-court opinions, but last spring I made one exception: Kavanaugh's dissent in a case involving presidential control over the federal bureaucracy, PHH Corporation v. Consumer Financial Protection Bureau….

It's a careful and subtle opinion, blending fidelity to the framers' original understanding of the Constitution with respect for modern developments such as the rise of the administrative state. It reflects a persuasive vision of the Constitution's commitment to a "unitary executive." The Constitution explicitly and emphatically vests the executive power in one president and all lower executive officials ultimately answer to him, in one way or another… Unlike extreme versions of "unitary executive theory" famously associated with the conservative legal scholar John Yoo, Kavanaugh's is a modest version of the theory, respectful of modern independent agencies and noncommittal on contested issues of presidential war power.

Much of what Prof. Amar says in the passage quoted above is true. For example, Kavanaugh's reasoning does not entail any endorsement of John Yoo's very broad views of presidential war powers (which I have taken issue with in the past myself). But I am not convinced that Judge Kavanaugh's approach to the unitary executive is a "modest version of the theory" or that it is "respectful of modern independent agencies." In PHH, Kavanaugh could not rule that independent agencies are generally unconstitutional, because (as a lower court judge) he was constrained by Supreme Court precedent holding otherwise. He nonetheless makes clear that, in his view, independent agencies are "a headless fourth branch of the U.S. Government" that poses "a significant threat to individual liberty and to the constitutional system of separation of powers." That reasoning applies to all independent agencies, not just those that are headed by a single director rather than a multimember board.

In principle, a unitary executive can still be confined to a very narrow range of powers. Executive authority might be very limited, but such of it as exists can be under sole control of the president. The unitary executive theory addresses the distribution of executive power, not its scope. In practice, however, the modern executive branch has accumulated vast power, which is unlikely to be severely cut back any time soon. In that situation, judicial enforcement of the unitary executive doctrine necessarily requires a vast concentration of power in the hands of one person - far more than was given to him or her by the original meaning of the Constitution, and far more than is safe. That is why I have reservations about the broad scope of Kavanaugh's reasoning in PHH, even though I have no strong objection to his conclusion about the specific case of the CFPB.

I discussed the dangers of unitary executive theory (an issue on which I have turned against my own previous views) in greater detail here. I discuss other aspects of Kavanaugh's jurisprudence on executive power here and here.

NEXT: Judge Willett Questions Qualified Immunity

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  1. Kavanaugh fears that the "CFPB's concentration of enormous power in a single unaccountable, unchecked Director poses a far greater risk of .?.?. abuse of power, and a far greater threat to individual liberty, than a multimember independent agency."

    What catches my eye is the bit about "individual liberty." In the example given, that seems unmoored to any particular enumerated liberty put in peril by the CFPB. It suggests instead a notable early example, if not the first, where a would-be Justice proposes constitutionalizing in a general way the libertarian conception of personal liberty, and extending it especially to a broad range of property rights not specifically cited in the Constitution. If so, it implies an upcoming venture into heretofore unexplored territory. Implications, especially for regulatory law, could by far reaching. That ought to be very big news, and a major focus during Kavanaugh's Senate hearing.

  2. If the unitary executive theory is threatened by the modern administrative state, there are 2 simple and constitutional and intelligent ways to fix it: 1) Eliminate agencies; 2) Amend the constitution to include other elected executive officers.

    1. The dictate in dictatorship is the unelected official speaking law directly. That's what regulations are.

      If one wants to maintain the fiction this is ok, one has to follow the constitution and consider them part of the enforcement of the laws and thus under the president.

      Congress does not have the honor of creating a subordinate lawmaking body they nominally control but want to appear hands off of so they can't get blamed for terrible or burdensome laws.

      As mentioned the solution is easy. If those in power don't like it, get rid of them (save perhaps as a study body recommending regulations) and pass the regulations directly as laws.

      Or, amend the Constitution, convincing 3/4 of the states it's a good idea to have a trillion dollar burden on America severed from congressional or presidential control, "and that's a good thing". Goodbye, democracy.

      I'd like to take this moment to cheaply push my belief activist judges that increase personal freedom are ok, but those that increase the power of government are not. I'm sick of the latter sneaking into power hiding behind the former.

    2. Nailed it. Professor Somin's recent rethinking of the unitary executive doesn't make any sense. His argument is essentially that unitary executive is wrong because courts don't enforce the limitations on federal powers and courts don't enforce the anti-delegation doctrine.

      Part of this rethinking is obviously a response to Trump. But I think Ilya is seriously underestimating the dangers of the alternative which is particularly concerning because of the CFPB scenario is staring him right in the face. Imagine that legislation was passed to create the Trumplestiltskin Trade Protection Bureau which was imbued with the power to control port traffic and tariffs. Imagine that the legislation limited the president's ability to remove the head of the bureau during the next president's term. At the end of his term, Trump resigns as president and Pence appoints him as the Trumplestiltskin. All of a sudden, President Harris can't stump the Trump.

  3. Again, I point out that the answer to the federal government unconstitutionally usurping vast new powers is not to invest them in unelected bureaucrats. It is to recognize that the powers are unconstitutional.

    1. Sadly, yes. We hardly know we never, ever, vote for those who impact our lives the most (excepting those who suffer more from words than deeds).

  4. In his final contribution to political science, John C. Calhoun advocated for a plural executive--but recognized the Constitution would need to be amended to provide for it. That remains the case.

    1. Calhoun, eh? I smell a disciple of James Buchanan!

  5. Almost 48 hours, and 5 comments. Guess the Reason-commentariat/Trump-base doesn't take the bait on substantive discussion. Peculiar. Put some gay marriage stuff in, and this thread would take off like a rocket. Or Antifa. Wait, maybe there's guns. Hasn't Kavanaugh got any gun-related decisions?

    1. Do you have any particular backing for making the assertion that this would be the case in your hypothetical. (a quick scroll shows that the most recent gun article has only 8 comments as of this posting despite being posted 2 days ago).

      Do you believe your current comment is likely to engender said substantive discussion?

      [FWIW scrolling through the most recent pages of the conspiracy's postings did not reveal any obvious patterns WRT the comments. Now, I haven't taken the time to do a more detailed study, but I feel the burden of proof lies with your assertion. Certainly it's possible I'm wrong about this, and I'd love to see your data if you have it, but otherwise I feel this comment is not helpful to the goal of furthering dialectic, which is disappointing because many of your other posts have been quite insightful.]

    2. Meh, it's a lay rehash of Ilya's post from back in May (which got 144 comments) And it was over Labor Day weekend.

      Lousy symposium. Cole devoting his section to a concurrence on a denial of petition for en banc review was strange. Wydra's contribution was shockingly off-message considering ACS is supposedly a non-profit focused on textualism arguments from a progressive viewpoint. Pitlyk's contribution in support of Kavanaugh was boring.

    3. There's not a lot to say: Independent agencies have no constitutional basis. That's going to be so whether or not you're disturbed by the powers they've been given ending up controlled by a particular President.

      Standard originalism: Not liking what the Constitution says doesn't change its meaning. We have a unitary executive even if you don't like him.

      If vast, unconstitutional usurpations of power upset Ilya, it's unclear how he thinks their being exercised by unaccountable bureaucrats improves the situation any. The one great advantage of a unitary executive is that there's no division of responsibility: If there's one person calling the shots, there's one person to blame and replace.

      The bureaucracy, by contrast, is like a swarm of army ants: Any individual component might be crushed, but the swarm just closes up ranks and continues on its path. If you don't lit its path, there's virtually nothing to be done!

      It's hard to see how Ilya finds this an improvement. Trump at least will be gone in a few years, the bureaucracy is effectively immortal.

  6. The issue with the strength of the presidency is not a function of the presidency itself. The "problem" is one entirely of Congress's making. A more interesting question is where the Judge stands on the ability of Congress to transfer its enumerated powers to the President. See the broad discretion given under the country's immigration laws for an example.

  7. In that situation, judicial enforcement of the unitary executive doctrine necessarily requires a vast concentration of power in the hands of one person - far more than was given to him or her by the original meaning of the Constitution, and far more than is safe.

    Then the proper remedy would be to enjoin the agencies from taking unconstitutional action, not to insulate these agencies from presidential control.

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