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44 Admin. & Reg. L. News 5 (2018-2019)
Brett Kavanaugh and the Executive-Indulgent Court

handle is hein.journals/admreln44 and id is 7 raw text is: Symposium: Justice Kavanaugh n what follows, the Administrative & Regulatory Law News (ARLN) is pleased to present three diverse perspectives on Justice Kavanaugh's potential impact on the Supreme Court's jurisprudence on executive power and administrative law. We are grateful for these important contributions from Professors Peter Shane (Ohio State), Jonathan Adler (Case Western Reserve), and Jennifer Mascott (George Mason). The authors' respective views speak for themselves. But a collective insight is that Justice Kavanaugh's addition to the Court may bring additional attention to, and move the needle on, some as-yet unsettled doctrinal questions about execu- tive power and administrative law. If so, there will be much to write and reflect on in the months and years ahead-we welcome your ideas for future coverage in these pages. - ARLN Editors Brett Kavanaugh and the Executive-Indulgent Court Peter M. Shane* The ascension of Brett Kavanaugh to the Supreme Court will solid- ify the most executive power-indulgent Supreme Court since World War II. In my scholarly writing, I have used the word presidential- ~ ism to describe a theory of government and a pattern of government practice that treat our Constitution as vesting in the President a Peter fixed and expansive category of executive authority largely immune to legislative control or judicial review. PETER M. SHANE, MADISON'S NIGHTMARE: HOw EXECUTIVE POWER THREATENS AMERICAN DEMOCRACY 3 (2009). Both on and off the bench, now-Justice Kavanaugh has crusaded for a presidentialist view of the Constitution that could effectively undermine a President's accountabil- ity to law-a view all too likely M. *Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law. This essay is based on the author's September 7, 2018, testimony to the Senate Judiciary Committee on the Nomination ofBrett M. Kavanaugh to Serve as an Associate Justice on the Supreme Court. The complete text is available at https://www.judiciary.senate.gov/imo/ media/doc/Shane%20Testimony.pdf. to be shared by a number of his fellow Justices. Until now, the Supreme Court has rejected by large margins the unitary executive theory (UET) that Justice Kavanaugh favors. As many UET advocates read Article II of the Constitution, the President is constitutionally Shane vested with the authority to remove from office any executive branch administrator at will and to direct how all such officers discharge their discretionary functions under the statutes Congress enacts. Two well-settled decisions rebuff that theory. The first is Humphrey's Executor v. United States, the Court's unanimous decision over 80 years ago that Congress was constitutionally entitled to protect members of the Federal Trade Commission from removal at will by the President. 295 U.S. 602 (1935). The second is Morrison v. Olson, the Court's 7-1 decision upholding the independent counsel provisions of the Ethics in Government Act. 487 U.S. 654 (1988). Notably, each opinion was written for the Court by a prominent conservative Justice of an earlier decade-George Sutherland Fall 2018 5 in the earlier case and William H. Rehnquist, Jr. for the latter. Even if this version of UET were an accurate reading of what Article II meant in 1787-and it is not-tethering Congress's modern institutional design choices to the realities of 1787 government administration would make no sense. The smallest 21st-century cabinet department is larger than the entire federal executive branch in 1800, and today's federal government wields extensive powers that the founding generation could not have envisioned. As the libertarian legal scholar Ilya Somin has argued: In many cases, it might be more in the spirit of the Founding Fathers to divide this overgrown authority than to give it all to the President. After all, the Founders repeatedly warned against excessive concentra- tion of power in the hands of any one person. Ilya Somin, Rethinking the Unitary Executive, THE VOLOKH CONSPIRACY (May 3, 2018), https:// reason.com/volokh/2018/05/03/ rethinking-the-unitary-executive. As a judge on the D.C. Circuit, Kavanaugh was not just an enthusiast for presidential power, but also a campaigner. His noteworthy judicial opinions on the unitary executive were rendered in disputes where no Administrative & Regulatory Law News 5 Fall 2018

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