Kavanaugh’s false claim on independent agencies

Kavanaugh: “I did not cast doubt on Humphrey’s Executor.” That’s at 7:10:19 of this clip, and that’s just straight-up false. FALSE. Kavanaugh wrote 12 pages of doubt-casting on Humphrey’s, and that means he has an extreme view of presidential power.

We can quibble about whether Kavanaugh’s explicit, remarkable doubt-casting on Humphrey’s in two cases means he’d overturn Humphrey’s. But there’s no doubt that his statement to Sen. Chris Coons was false. Coons entered my explanation into the record.

Why is this important? It’s more than just about the President’s power to fire Mueller just because he wants to. Remember when Trump criticized the Fed for raising interest rates… and not being more helpful to him? At least the Fed and other key independent agencies are insulated from presidential firing and other presidential manipulation. But if the Supreme Court overturns Humphrey’s and adopts Kavanaugh’s extreme unitary executive theory (which is supported by Scalia mythology but not supported by actual history, as I explain here), then Trump could fire the Fed Board of Governors and  install a new slate of cronies who would benefit him politically and personally. The same thing could happen on a number of powerful agencies. It’s bad.

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 political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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