About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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
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


*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

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://
  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


Fall 2018

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most