Bench Memos

Law & the Courts

Judge Kavanaugh’s Record Against the Administrative State

1. Judge Kavanaugh is a strong critic of the Chevron principle of deference to administrative agencies—both of the foundation of that principle and of the manner in which it is often exercised. In this Harvard Law Review article, Kavanaugh says that Chevron “has no basis in the Administrative Procedure Act” and “seems to flout the language of the Act.” He calls Chevron “an atextual invention by courts” and “[i]n many ways … nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” He complains that “Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints” and he observes that the problem is compounded when judges too readily find statutory language to be ambiguous.

In his rulings, Kavanaugh’s rigorous textualism has made him (like Justice Scalia) less prone to find statutes ambiguous than many of his colleagues have been—and thus less prone ever to get to the Chevron “step two” question whether an agency’s interpretation of an ambiguous statute is reasonable. (See, e.g., his dissent in Grocery Manufacturers v. EPA, criticizing the EPA’s attempt to “weave ambiguity out of clarity in the statutory text.”)

Kavanaugh has also earned acclaim for “cabining” the Chevron doctrine by helping to develop an exception to it for “major questions” of policy.

2. In Free Enterprise Fund v. PCAOB (2008), Kavanaugh argued in a powerful dissent that limitations on the president’s ability to remove the members of the Public Company Accounting Oversight Board violated the president’s executive authority under Article II of the Constitution:

The President’s power to remove is critical to the President’s power to control the Executive Branch and perform his Article II responsibilities. Yet under this statute, the President is two levels of for-cause removal away from Board members, a previously unheard-of restriction on and attenuation of the President’s authority over executive officers. This structure effectively eliminates any Presidential power to control the PCAOB, notwithstanding that the Board performs numerous regulatory and law-enforcement functions at the core of the executive power.

Kavanaugh’s dissent emphasized that “it is always important in a case of this sort to begin with the constitutional text and the original understanding, which are essential to proper interpretation of our enduring Constitution.” His dissent is a thorough and impressive exercise of originalism.

The Supreme Court ended up agreeing with Kavanaugh, by a 5-4 vote, and the majority opinion tracked and even block-quoted Kavanaugh’s analysis on this important issue.

3. In a majority opinion in a panel ruling in PHH Corporation v. CFPB (2016) and again in a dissent from the en banc ruling in the same case earlier this year, Kavanaugh found the structure of the Consumer Financial Protection Bureau (a creation of the Dodd-Frank Act of 2010) to be unconstitutional. Some excerpts:

To prevent tyranny and protect individual liberty, the Framers of the Constitution separated the legislative, executive, and judicial powers of the new national government. To further safeguard liberty, the Framers insisted upon accountability for the exercise of executive power. The Framers lodged full responsibility for the executive power in a President of the United States, who is elected by and accountable to the people. The first 15 words of Article II speak with unmistakable clarity about who controls the executive power: “The executive Power shall be vested in a President of the United States of America.” U.S. CONST. art. II, § 1. And Article II assigns the President alone the authority and responsibility to “take Care that the Laws be faithfully executed.” Id. § 3. The purpose “of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom.” Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting)….

The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. Government. They hold enormous power over the economic and social life of the United States. Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.

To mitigate the risk to individual liberty, the independent agencies historically have been headed by multiple commissioners or board members. In the Supreme Court’s words, each independent agency has traditionally been established as a “body of experts appointed by law and informed by experience.” Humphrey’s Executor, 295 U.S. at 624. Multi-member independent agencies do not concentrate all power in one unaccountable individual, but instead divide and disperse power across multiple commissioners or board members. The multi-member structure thereby reduces the risk of arbitrary decisionmaking and abuse of power, and helps protect individual liberty.

In other words, the heads of executive agencies are accountable to and checked by the President; and the heads of independent agencies, although not accountable to or checked by the President, are at least accountable to and checked by their fellow commissioners or board members. No independent agency exercising substantial executive authority has ever been headed by a single person.

Until now.

(Two weeks ago, a federal district judge in New York, expressly adopting Kavanaugh’s dissent, ruled that the CFPB is unconstitutionally structured.)

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