Brett Kavanaugh on Executive Power and Agency Independence

Executive Power and Subordinate Control

• ⚡ Kavanaugh questions the theory that subordinates could disregard presidential direction without consequence, especially if the president cannot remove them.
• 🏛️ The core argument presented is that for the president to exercise executive power, he needs subordinates he can supervise and direct, which necessitates the ability to remove them at will.
• ⚠️ If a subordinate can ignore the president's instructions and the president has no recourse, it undermines the president's authority.

Agency Independence vs. Executive Control

• 🎯 The respondent attorney argues that while subordinates might disregard instructions on enforcement priorities, this doesn't apply to the FTC Act in the modern era of independent agencies.
• ⚖️ The theory is that Congress and the President can decide that vital interests, including liberty, are best served by multimember commissions, even if it means less direct presidential control.
• 🔑 Kavanaugh counters that once power is taken from the executive, it is very difficult to regain through the legislative process, as Congress is disinclined to relinquish control.

Regulatory Stability and Precedent

• 📈 The argument for regulatory stability is presented as a virtue of the current regime, suggesting that frequent shifts in administration or presidential whim can create instability.
• 🤝 The staggered terms of independent agency members are intended to guarantee a modicum of stability that private entities can depend upon, which is jeopardized by at-will presidential removal.
• 📜 The court's precedents do not mandate these arrangements but acknowledge that elected representatives can decide on such structures.

Remedies and Congressional Action

• ✂️ The discussion touches on the potential remedy of severing a for-cause removal provision rather than striking down an entire agency if a constitutional issue arises.
• 🔬 Kavanaugh notes that Congress has experimented with single-headed independent agencies and double for-cause removal provisions in the last decade, challenging the idea that Congress strictly adheres to established models.
• 🧐 The court will decide these questions as they arise, acknowledging that political branches may depart from established models in constitutionally problematic ways.