Brett Kavanaugh’s Legal Logic Falls on Deaf Democratic Ears

This article appeared on DC Examiner on September 13, 2018.

Day Two of the Brett Kavanaugh confirmation hearings moved from soliloquy to dialogue, as the senators took turns quizzing the nominee on matters of varying degrees of substance. The solemnity was not improved by another round of the local hobbyists whose avocation seems to be competing for the least flattering photo of themselves being dragged away by the Capitol Police. The circus was empty, and all the clowns were all there.

In the center of the three rings, Sen. Amy Klobuchar, D‑Minn., attacked Kavanaugh’s opinion in PHH Corp. v. Consumer Financial Protection Bureau, which held that the removal protections that Dodd‐​Frank provided the CFPB director were inconsistent with the structure of the Constitution. In Klobuchar’s imagination, this radical view defined Kavanaugh as the wrecking ball of the administrative state. Ignoring the Supreme Court’s approval of independent agencies in Humphrey’s Executor v. United States, he struck down an agency, undermining the consumer protections Congress sought to assure, and is looking forward to striking down the rest. What of the Social Security Administration, she demanded, predicting Kavanaugh would smash that idol as well.

Of course, Kavanaugh’s opinion in PHH did no such thing. As he tried to explain to deaf ears, he never argued the CFPB as an agency was illegitimate, or that its authority need be limited. His constitutional objection was to the structure of the agency, which limited the accountability of the director. Traditionally, federal agencies came in two flavors: departments with a single director accountable to (read: can be fired by) the president, and multimember bipartisan commissions who are granted independence from presidential authority. The theory of the latter is that the division of power among the members of the deliberative body provides the necessary check on arbitrary authority, which in the single‐​headed agency is provided by the president’s ability to fire a rouge administrator (put aside for the moment whether this theory works out in practice). Dodd‐​Frank broke with this tradition, installing a single director who could be removed only for cause. The opinion in PHH argued that transgressing this boundary was constitutionally infirm. “To ensure accountability for the exercise of executive power, and help safeguard liberty, the Framers then lodged full responsibility for the executive power in the president of the United States, who is elected by and accountable to the people,” Kavanaugh wrote. “To carry out the executive power and be accountable for the exercise of that power, the president must be able to control subordinate officers in executive agencies.” Humphrey’s Executor carves out “quasi‐​legislative” bodies like the FCC and FTC, but it is an exception to the general rule.

Kavanaugh’s solution to this infirmity was modest: He held the CFPB director was removable by the president at will. Far from hampering the agency, he placed it on a par with the Departments of Justice, Defense, and State. Critics argue that the independence of the CFPB is necessary to shield it from the political winds. Cynics suspect they will feel differently in 2021 when President Oprah Winfrey takes office and tries to remove Mick Mulvaney from the directorship. Sauce, goose, gander, etc.

Following Klobuchar, Sen. Chris Coons, D‑Del., harrumphed a bit more about Humphrey’s. His innovation was to bring up a related case, Morrison v. Olson, which Kavanaugh has at various points in the past nominated for reversal. In Morrison, the Supreme Court, over a well‐​known dissent by Justice Antonin Scalia, upheld the independent counsel statute, which created a prosecutor outside the control of the president that could investigate the administration itself. This is the provision under which Ken Starr (with the assistance of a young attorney named Brett Kavanaugh) pursued then‐​President Bill Clinton first for financial irregularities and later for his tendency to treat the women he came in contact with like stress balls and pin cushions. The mission creep of the Starr investigation was enough to convince both political parties to let the independent counsel system die a natural death soon after.

But investigating presidents is on trend these days, and so Coons pressed Kavanaugh regarding the criticism of Morrison. Those with more productive ways to spend their lives than studying constitutional law may not be aware that Kavanaugh’s willingness to publicly deride Morrison is unsurprising, given that derision of Morrison is profoundly mainstream. Scalia’s admonition that, unlike other threats to our system of government that arrive in sheep’s clothing, “this wolf comes as a wolf” long ago passed into legend. As Kavanaugh pointed out, the partisans of Scalia’s dissent include noted conservative reactionary Justice Elena Kagan.

And Scalia’s dissent has aged like single malt for good reason. Rogue prosecutors are bad enough without endowing a prosecutor with the mandate to go rogue. It’s not for nothing that these independent investigations have a habit of ending up far afield from their original scope: see Starr, above, or the conviction of Scooter Libby for actions having nothing very much to do with the outing of Valerie Plame. Someone once pointed out that conservatives are very concerned about government waste except when the money pit is inside the Pentagon. Recent evidence suggests that progressives are similarly aghast at the excesses of our criminal justice system except when those being prosecuted are Republicans.

And that, of course, is what Coons’ questioning was really about — not so much subtext as a glowing apparition of Robert Mueller appearing before the C‑SPAN cameras. Of course, Mueller is not an independent counsel, that statute long since having passed on. He is a “special” counsel, which more or less no one (including Scalia, and almost certainly Kavanaugh) objects to. This means he does not have the full independence that was afforded Ken Starr, but given the recent convictions of two former associates of the president, it’s not clear Mueller needs it.

The questioners spoke often today of accountability (as did the protesters), arguing that the president must not be above the law. Good on them. But the need for accountability does not stop at the doors of the Oval Office. Indeed, it is precisely because our officials must be brought to account that we should be skeptical of their insulation from presidential oversight. A single recalcitrant president can be brought to heal far easier than hundreds of unfireable bureaucrats spread across dozens of departments and agencies. Coons’ decried the “unitary executive” theory as a license for presidential tyranny, but European history reminds us that a single tyrant is actually fairly easy to behead. It’s innumerable Sheriffs of Nottingham spread throughout the land of which we should be more afraid.