The Wolves in Kavanaugh’s Footnotes

If you’re concerned that Judge Kavanaugh has an extreme view of presidential power, you’re not going to find proof in his overhyped 2009 Minnesota Law Review article. But you might find it in his injudicious judicial footnotes.

Last week, I explained how that article had been misinterpreted and should actually be solace that he does not think the Constitution shields a president from investigation.  Unlike some stealthy candidates, he has a real record with courageous decisions, and we shouldn’t punish a nominee with a deep and complicated record. I wrote about how much I admired his handling of a constitutional challenge to the ACA, and I was encouraged by his view that courts should have a stronger role in checking agencies’ powers over statutory interpretation. Jonathan Adler has flagged Kavanaugh’s persuasive opinion in U.S. v. Burwell in favor of criminal defendants’ rights, dissenting from a majority opinion joined by Judge Garland. I like this Kavanaugh a lot.

But there is a very different Kavanaugh in some troubling footnotes and his use of precedent in two cases that I have looked at more closely: one from 2016 and 2018 that hints an end independent agencies, and the other, the ACA dissent in 2011, that invites executive “suspension” of the laws (i.e., non-enforcement). He appears to have a blindspot: a preference for executive power even if the history does not support such a conclusion. That’s a problem for an ostensible originalist. He appears to have an excessive preference for Scalia dissents and concurrences. And his lack of deference to precedent and history in these cases signals that he is far more likely to overturn Roe v. Wade than I had naively imagined. Much like Kennedy, Kavanaugh may be an idiosyncratic or heterodox conservative; but unlike Kennedy, the surprise may be that he turns out to be more like Scalia.

In the first case, on the Consumer Fraud Protection Bureau, I raise these concerns even though I agree with many conservatives on Kavanaugh’s conclusion in that case: that the design of the CFPB was constitutionally problematic. Nevertheless, why did Kavanaugh rely heavily on Justice Scalia’s lone dissent in Morrison that would have invalidated the office of Independent Counsel, rather than the majority precedent that upheld it by a 7-1 vote? And does Kavanaugh subscribe to Scalia’s hyperformalist theory of unitary executive power, even though its historical assumptions are clearly wrong?

In PHH v. CFPB, the plaintiff was challenging the structure of the independent agency created in 2010. Independent agencies have been an important part of the federal government for almost a century and a half. Two key features of such agencies are that 1) they are run by multi-member bipartisan commissions and 2) the commissioners or officers cannot be fired at will by the president, but can be fired only for good cause. This structure is crucial for fostering expertise 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?

So here’s one twist: Senator Elizabeth Warren and the Democrats created the CFPB with a massive design flaw: it has a single director, not a commission. This design departed from a long tradition of multi-member commissions, giving too much power to one director. If one justification of this independence is to insulate the agency from politics, a single director defeats this purpose, because the political interests of that director are not counterbalanced by other officers. (Considering that this bureau was designed with one particular director in mind, this design was especially problematic). Judge Kavanaugh concluded that this design violated the Constitution, and in order to restore proper balance, the director should not be protected from firing at the president’s will.

I agree with many conservatives that Kavanaugh got this decision right, first in late 2016 in a 2-1 majority opinion for a panel, and then in a 2018 dissent when the entire Circuit reheard the case en banc. So why am I troubled? First, Kavanaugh relied heavily on Scalia’s lone dissenting opinion in Morrison v. Olson, citing it eight times in the panel decision and six times in his en banc dissent. Kavanaugh relies on it to establish the “unitary Executive” theory, a formalistic interpretation that centralized control of the executive branch under the president. The vote in Morrison was 7-1 to uphold the office of Independent Counsel as constitutional. There was a reason Scalia was all alone in dissent: he was wrong, and his historical assumptions were demonstrably wrong.

In April, I explained that some Republican members of Congress, the Federalist Society and many lawyers and academics – including some liberals – had been trying to revive Scalia’s lone dissent, despite its deep flaws. Some of them were reviving it as part of an effort to block protections for Mueller’s special counsel office. The effort is not partisan, but it is puzzling because it is so ahistorical. It seems driven more by recency bias and myopic reactions to Kenneth Starr than by the historical record. Here is what I wrote in April:

Unfortunately for their position, Scalia’s dissent was fundamentally wrong about American history, which should be a fatal flaw on his own originalist terms… Scalia alone believed the statute was unconstitutional, relying on an originalist historical argument about the separation of powers. Scalia’s core position: “Government investigation and prosecution of crimes is a quintessentially executive function.” He continued: “We should say here that the President’s constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States.” (That’s Justice Scalia’s original emphasis on the word complete.)

The problem is that Anglo-American history does not support these assumptions. At the risk of oversimplifying, here are the problems. First, most prosecution in England and America until the mid-19th century was private prosecution, brought by individuals, not government prosecutors. Second, even if you take Scalia to be making a more limited claim about government investigation and prosecution, he still overlooked the long history of the contempt power in England’s Parliament, state legislatures, and Congress. Contempt of Congress is now a felony, but even before that, Congress had an inherent power to prosecute non-members, as well as members, without relying on executive branch officials. Everyone should read Josh Chafetz’s recent book Congress’s Constitution covering this subject. His research is outstanding, but the basic story of Contempt of Congress was well-known when Scalia and Kavanaugh were writing. Asha Rangappa and I have pointed out how the Republicans in Congress have recently threatened to use subpoenas and contempt of Congress to control the Department of Justice, underscoring how Scalia and the unitary executive theory continue to be wrong today. (Interesting sidenote, potential spoiler alert: Justice Joseph Story says a president can’t pardon Contempt of Congress. Don Jr., Erik Prince, Roger Stone, call your lawyers… More on that to come later.)

Third, the Founding era practices also undercut Scalia’s assumptions. As I highlight in my article on the origins of the Department of Justice, colonial prosecutors were often appointed by judges, 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, assigned to the governor the power to appoint justices of the peace, but delegated to the legislature the power to appoint the attorney general, and gave judges the power to appoint sheriffs, coroners, and constables. Then the Judiciary Act of 1789 gave federal judges the power to remove deputy marshals. In a fascinating lost history, Congress’s 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. Nevertheless, the draft showed that it wasn’t obvious that prosecution had to be executive. (The federal story is long-established. My state research is new, and I’ll expand on it when I get a chance).

The bottom line is that Scalia’s oversimplified history was wrong, and that’s a problem for someone who claims to be an originalist. Kavanaugh, ostensibly an originalist, erred by relying so heavily on bad history, after so many historians have exposed these errors. It suggests that Kavanaugh is enamored with centralized presidential power and the unitary executive theory, despite its ahistoricity and despite the even more salient risks of presidential abuse of power recently.

If you’re concerned about whether Judge Kavanaugh defers to precedent, his reliance on a lone dissent rather than the decision is unsettling enough (and I use the word “unsettling” intentionally). Moreover, in footnote 15 of his 2016 decision and then in footnote 18 in the 2018 dissent, he hints that the foundational precedent for the entire line of independent agencies, Humphrey’s Executor, is in doubt. To be clear, he doesn’t say explicitly that Humphrey’s should be overturned, he emphasizes that the plaintiff preserves this additional argument. But he went on to cite critics of Humphrey’s and cast doubt on the validity independent agencies. He even addresses the effect of overturning Humphrey’s. [Update: I decided to include the entire footnote and the end of this post below so you can read it yourself more easily. It reads as a short essay questioning the validity of independent agencies, which is, let’s say, highly unusual. I provide the last paragraph here]:

Of course, overruling Humphrey’s Executor would not mean the end of the agencies that are now independent. The agencies would simply transform into executive agencies supervised and directed by the President. So the question is not the existence of the agencies; the question is the President’s control over the agencies and the resulting accountability of those agencies to the people.

This footnote reads as if he is contemplating ending the independence of these agencies and giving dramatically centralized power to the president over banking, Wall Street, trade policy, workplace safety, nuclear safety, etc. The list goes on and on, and the idea of taking power away from professional bi-partisan experts to the president is troubling, to put this mildly. If Kavanaugh had simply helping the plaintiff preserve an unlikely claim, he could have simply dropped a footnote with a single sentence. But here, Kavanaugh wrote a short essay on the plausibility of ending the long-settled, highly successful, vital 150-year institution of independent agencies.

To be fair, there are many professors who hold this view, but it is not a widely held view that independent agencies are unconstitutional. I will let others weigh in on whether this idea is mainstream or extreme or radical. I would say it is a mainstream view that agency independence should be limited, as Kavanaugh wrote about the CFPB and the SEC. But striking down the protections for independent agencies  across the board would be a remarkable reversal of tradition and precedent based on a hyperformalist theory – the unitary executive – which is simply not supported by the historical record. If Kavanaugh embraces such a theory, it raises questions about the reliability of his historical assumptions, and whether he is committed to originalism or to ahistoric formalistic theories of executive power. There is ambiguity in this noncommittal footnote, but if Kavanaugh is seriously considering striking down the structure of independent agencies in the Trump era, 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 a lot more power over all of these areas of modern life.

But there is also a larger question: How much Judge Kavanaugh really adhere to precedent? When he casually entertains overturning almost a century of canonical cases, he’s telling us, “Not much at all.” He gives Scalia’s dissent more weigh than the Morrison majority. He plays with the idea of uprooting Humphrey’s Executor and with it, 150 years of reliance, settled practice, and institutional development under independent agencies. What does this mean for Roe v. Wade?

That brings us to a second case, Seven-Sky v. Holder on the Affordable Care Act. Let me reiterate my praise for Kavanaugh’s conclusion in this dissent, finding that the ACA’s individual mandate was a tax. This interpretation was ultimately how Chief Justice Roberts ruled in upholding the individual mandate – it was a valid use of Congress’s taxing power. Kavanaugh showed admirable independence from tremendous partisan pressure to strike down ObamaCare.

But while I praised this decision, I had overlooked a sentence about presidential power with an odd footnote. Kavanaugh wrote, “[T]he President might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional.” And then he drops a footnote 43:

“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. See Freytag v. Commissioner, 501 U.S. 868, 906, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring) (the President possesses “the power to veto encroaching laws or even to disregard them when they are unconstitutional”).”

Again, Kavanaugh contemplated executive discretion to ignore a law on the books, and again, he cites Scalia – not a majority opinion, but a Scalia concurrence. And it turns out that President Trump has done this with the ACA, by choosing not to enforce the individual mandate and finding other ways to sabotage insurance markets and health care reform. Simon Lazarus asks some of these questions here.

The problem is that Kavanaugh and Scalia have to reconcile this view of presidential discretion to non-enforce with the text of the Constitution itself: “The president shall take Care that the laws be faithfully executed.” Ethan Leib, Andrew Kent, and I have been unearthing the English and American background and significance of this clause (see, e.g., our op-ed summary here). For a while, originalist and non-originalist scholars have suggested from the context of the Founding that the Framers included this language specifically to prevent the English monarch’s abuse of “suspension,” to suspend the enforcement of Parliament’s laws. In the wake of the Glorious Revolution, England’s Bill of Rights in 1689 ended the king’s power to suspend laws with discretionary non-enforcement. Six early state constitutions similarly barred the executive from suspending the laws. In context, several scholars have argued, the founders were incorporating the same limit on executive discretion in the language of “faithful execution.” Patricia Bellia recently cited an opinion by one of the key framers, Justice William Paterson, adopting this rule, and she concludes, “Whatever the concept of faithful execution might encompass, the drafting history suggests that it does not encompass the power to suspend or disregard duly enacted laws.” But these scholars also acknowledge that there is no explicit link in the historical record.

In our project exploring the history of “faithful execution” in English and American law, Andrew Kent, Ethan Leib, and I have recently found more to substantiate this historical context. During the New Jersey and Pennsylvania ratification debates, one writer explained :

The power of the President of the United States will not be so great as many have represented. He… shall take care that the laws be faithfully executed. It will be readily agreed that it would be highly ridiculous to send representatives, and be at the expense of maintaining them, to make laws for us, if we did not give power to some person or persons to see them duly executed. The wisdom and prudence is to be shown in the framing laws; the complete execution of them ought to follow of course…” (emphasis in original)

Kavanaugh’s claim that a president could simply suspend or ignore a law needs to reconciled with the scholarship on the original public meaning of the Take Care clause, “faithful execution,” and its limits on executive power. Some adhere to a “departmental” theory that the president can also interpret the Constitution, but the Constitution itself, in the “faithful execution” language, seems to limit that discretion and bar suspension of laws. Maybe “faithful discretion” simply means good faith, in a fiduciary context, as in the good faith of one’s own interpretation of the Constitution. But Kavanaugh should engage with this complicated historical question, rather than simply cite a Scalia concurrence.

And coincidentally, in a constitutional question that could go in different directions, Kavanaugh again happens to side with executive power. There is a pattern here: a preference for executive power, even if lacks clear support by the historical context of the Founding. And he also shows a remarkable preference for Scalia dissents and concurrences, even if they conflict with precedents and historical evidence.

Interestingly, Kavanaugh cited a particularly colorful passage from Scalia’s Morrison dissent a few times. The 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, and I frankly don’t know if he’s a wolf (by that I mean an extremist judge who disregards precedent and will overturn decades of settled practices and institutions). On the one hand, there is plenty of extremely qualified moderate-conservative clothing (his ACA conclusion in Seven-Sky, his mainstream Minnesota Law Review piece, his defense of criminal defendants in U.S. v. Burwell).

On the other hand, he puts a lot of wolves in his citations and footnotes. To mix classic Scalia metaphors, he puts wolves in mouseholes. I’m not sure what to make of this record. I am obviously not suggesting that he is unqualified, nor that he recuse from any future cases, but I am asking questions directly from his opinions about some of his blindspots and his potentially extreme positions. These signs — about Kavanaugh’s reliance on Scalia’s flawed dissents and concurrences, his flawed historical assumptions that somehow point him in favor broad executive power, and what these signs portend — deserve candid, good faith questioning in confirmation hearings. And these questions deserves candid and complete answers.

Appendix: Kavanaugh’s long footnote criticizing Humphrey’s Executor and independent agencies generally. Emphasis of critique added:

In its brief, PHH has expressly preserved the argument that Humphrey’s Executor should be overruled. The reasoning of Humphrey’s Executor is inconsistent with the reasoning in the Court’s prior decision in Myers. See Humphrey’s Executor v. United States, 295 U.S. 602, 626 (1935) (“In so far as” the expressions in Myers are “out of harmony with the views here set forth, these expressions are disapproved.”). The Humphrey’s Executor decision subsequently has received significant criticism. See Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41, 93 (“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.”); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 611-12 (1984) (“Remarkably, the Court did not pause to examine how a purpose to create a body ‘subject only to the people of the United States’ – that is, apparently, beyond control of the constitutionally defined branches of government – could itself be sustained under the Constitution.”). Moreover, the reasoning of Humphrey’s Executor is in tension with the reasoning of the Supreme Court’s recent decision in Free Enterprise Fund. See In re Aiken County, 645 F.3d 428, 444-46 (D.C. Cir. 2011) (Kavanaugh, J., concurring); Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1208 (2014). For those reasons, among others, PHH preserves the argument that Humphrey’s Executor should be overruled by the Supreme Court. Overruling Humphrey’s Executor would not mean the end of the agencies that are now independent. The agencies would instead transform into executive agencies supervised and directed by the President. So the question is not the existence of the agencies; the question is the President’s control over the agencies and the resulting accountability of those agencies to the people. In any event, it is not our job to decide whether to overrule Humphrey’s Executor. As a lower court, we must follow Supreme Court precedent, including Humphrey’s Executor. But it is emphatically our job to apply Humphrey’s Executor in a manner consistent with settled historical practice, the Constitution’s protection of individual liberty, and Article II’s assignment of executive authority to the President.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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