by Jonathan Decker
Yesterday, President Trump gave conservatives much to cheer for when he nominated Judge Brett Kavanaugh for the Supreme Court. As the Washington Free Beacon noted, Kavanaugh is known as the “intellectual center of the D.C. Circuit’s conservative wing” as the author of “roughly 270 opinions, concurrences, and dissents in his 12 years on the court.” Make no mistake, Judge Kavanaugh isn’t just good — he’s a rock star.
And as Jeffry Bartash at MarketWatch pointed out, once the Senate confirms Kavanaugh we will have “the most pro-business Supreme Court in decades. … He’s seen as one of the leaders in a conservative legal movement that questions whether the courts have granted too much leeway to government agencies to make law even in the absence of express congressional directives — the so-called Chevron deference.” In plainspeak, Kavanaugh’s nomination is yet another sign the Obama-era War on Business is over. His opinions reveal a deep skepticism for the administrative state and a clear focus on protecting and upholding the Constitution as written.
Judge Kavanaugh’s 12 years on the D.C. Circuit provide ample of evidence of his support for constitutionally limited government. But in the interest in brevity, I will showcase one particular ruling which I believe to be his “greatest hit.” Back in 2016, Judge Kavanaugh declared liberal Senator Elizabeth Warren’s Consumer Financial Protection Bureau (CFPB) unconstitutional. Here are some excerpts from his opinion:
Because the CFPB is an independent agency headed by a single Director and not by a multi-member commission, the Director of the CFPB possesses more unilateral authority – that is, authority to take action on one’s own, subject to no check – than any single commissioner or board member in any other independent agency in the U.S. Government.
At the same time, the Director of the CFPB possesses enormous power over American business, American consumers, and the overall U.S. economy. The Director unilaterally enforces 19 federal consumer protection statutes, covering everything from home finance to student loans to credit cards to banking practices. The Director alone decides what rules to issue; how to enforce, when to enforce, and against whom to enforce the law; and what sanctions and penalties to impose on violators of the law.
That combination of power that is massive in scope, concentrated in a single person, and unaccountable to the President triggers the important constitutional question at issue in this case.
The petitioner here, PHH, is a mortgage lender and was the subject of a CFPB enforcement action that resulted in a $109 million order against it. In seeking to vacate the order, PHH argues that the CFPB’s status as an independent agency headed by a single Director violates Article II of the Constitution.
Recognizing the broad and unaccountable power wielded by independent agencies, Congresses and Presidents of both political parties have therefore long endeavored to keep independent agencies in check through other statutory means. In particular, to check independent agencies, Congress has traditionally required multi-member bodies at the helm of every independent agency. In lieu of Presidential control, the multi-member structure of independent agencies acts as a critical substitute check on the excesses of any individual independent agency head – a check that helps to prevent arbitrary decisionmaking and thereby to protect individual liberty.
This new agency, the CFPB, lacks that critical check and structural constitutional protection, yet wields vast power over the U.S. economy. So “this wolf comes as a wolf.”
In light of the consistent historical practice under which independent agencies have been headed by multiple commissioners or board members, and in light of the threat to individual liberty posed by a single-Director independent agency… We therefore hold that the CFPB is unconstitutionally structured.
In sum, we grant PHH’s petition for review, vacate the CFPB’s order against PHH, and remand for further proceedings consistent with this opinion.
Judge Kavanaugh’s strongly worded opinion in PHH Corp. v. CFPB shows that, as a Supreme Court justice, he will be a tour de force in keeping Big Government in check. Since President Trump’s deconstruction of the administrative state stands to potentially be among his greatest achievements, Judge Kavanaugh was a terrific choice for this job.
Justice Kennedy for Justice Kavanaugh is one of the best trade deals in the history of trade deals, believe me.
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