Over at SCOTUSblog yesterday, I examined the administrative law jurisprudence of Judge Kavanaugh, President Trump’s nominee to the Supreme Court. At nearly 4,000 words, I’d like to say it was a deep dive for a blog post, but Judge Kavanaugh has written more than 120 opinions dealing with administrative law. So the final draft was nearly half the length of the first draft, and even the first draft required tough judgment calls about which opinions not to include.

One of those excluded cases, as Jed Shugerman noted on Twitter, is Judge Kavanaugh’s 2011 concurrence in In re Aiken County. That case involved a decision by the Obama Administration’s Department of Energy to withdraw petitions submitted to the Nuclear Regulatory Commission (NRC) to construct a permanent nuclear waste repository at Yucca Mountain, Nevada. Having grown up in southern Nevada, I have followed closely the decades-long Yucca Mountain dispute (and even worked on the matter as a college intern in Senator Reid’s office). And I vividly remember President Obama’s reelection campaign promise to Nevadans that he would not send nuclear waste to Yucca Mountain — a commitment he kept by having his Energy Department withdraw the Yucca Mountain application.

The unanimous D.C. Circuit had little trouble dismissing the petitions (filed by states, counties, and individuals outside Nevada who wanted the Yucca Mountain plan to go forward). Chief Judge Sentelle, writing for the panel, explained that the NRC Licensing Board had denied the Energy Department’s withdrawal motion, but that the Nuclear Regulatory Commission itself had not yet rendered a decision. Without a final decision by the agency head, the D.C. Circuit held, the controversy was not ripe for judicial review.

Judge Kavanaugh joined the opinion in full and penned a separate concurrence to discuss the interaction between executive and independent agencies. “Given the importance and bitterness of the underlying dispute over Yucca Mountain,” he explained, “I think it worth exploring how we got here, constitutionally speaking.”

Shugerman interprets Judge Kavanaugh’s Aiken concurrence as the strongest evidence of an “unmistakable” “signal” that a Justice Kavanaugh would overrule Humphrey’s Executor — the Supreme Court’s 1935 decision that, in essence, recognized the constitutionality of independent agencies. Accordingly, Shugerman argues that “it’s fair to ask Kavanaugh [at his confirmation hearing] if he’d overturn Humphrey’s and if the job security in independent agencies is unconstitutional.”

Fortunately for the Senate Judiciary Committee, Judge Kavanaugh has already answered that question — in the last four pages of his Aiken concurrence (Part III), which I reproduce in full at the end of this post. But let’s first briefly walk through Judge Kavanaugh’s treatise-like treatment in Aiken of the role of independent agencies in the modern administrative state.

In Part I of his concurrence, Judge Kavanaugh details the difference between executive and independent agencies to explain why an independent federal agency (the NRC) could trump a decision by the President to withdraw Yucca Mountain as the nuclear repository site. “Taking a step back and reading the Constitution,” Judge Kavanaugh explains, “[o]ne would think that the President of the United States controls the Executive Branch and would be able to direct the interpretation of law and exercise of discretion by all agencies in the Executive Branch.”

That is certainly the reaction of my first-year law students when we get to Humphrey’s Executor in my legislation and regulation course. But Judge Kavanaugh then explains why that constitutional vision is inaccurate, detailing the rise of independent agencies and the Supreme Court’s 1935 decision in Humphrey’s Executor that essentially upheld their constitutionality. In describing Humphrey’s Executor, he notes that a number of scholars have criticized the opinion:

Humphrey’s Executor is perhaps best explained by the fact that it was decided in 1935 on what became known as Roosevelt’s “Black Monday.” It was one in a line of decisions issued in 1935 and 1936—including two others on the same day as Humphrey’s Executor—by a Supreme Court seemingly bent on resisting President Roosevelt and his New Deal policies. See Geoffrey P. Miller, Independent Agencies, 1986 SUP.CT. REV. 41, 93 (“Humphrey’s Executor, as commentators have noted, is one of the more egregious opinions to be found on pages of the United States Supreme Court Reports.”).

Shugerman reads Judge Kavanaugh’s parenthetical to Miller’s article as evidence to “infer[] that Kavanaugh thinks the Supreme Court should overturn Humphrey’s directly.” But even ignoring Part III of the concurrence, this is quite an inference. The cited page of Professor Miller’s article refers to a number of prominent administrative and constitutional law scholars — to Nathaniel Nathanson, who called the decision “unworkable and unsound”; to Robert Cushman, who called it “extremely unsatisfactory”; and to Harold Bruff, who called it “unrealistic and oversimplified.” Although he never says it in his Aiken concurrence, Judge Kavanaugh may well agree with these scholars that the reasoning in Humphrey’s Executor is underwhelming, without actually believing the outcome was incorrect, much less that stare decisis would not weigh heavily in preserving the precedent. But to draw all three inferences from a parenthetical is quite a leap.

In Part II of the concurrence, Judge Kavanaugh turns to the constitutional and practical issues inherent in an administrative state that includes independent agencies that are insulated by varying degrees from presidential control. In particular, Judge Kavanaugh emphasizes problems of democratic accountability: “[I]ndependent agencies have huge policymaking and enforcement authority and greatly affect the lives and liberties of the American people. Yet those independent agencies are democratically unaccountable—neither elected by the people nor supervised in their day-to-day activities by the elected President.”

“Democratically unaccountable” is over-simplistic and imprecise, as Judge Kavanaugh seems to recognize by adding a qualifer. But even that narrower definition of not elected and not presidentially supervised on a daily basis is too simplistic. The President still exercises some control over independent agencies by appointing their top leaders and by being able to remove them for cause (or whatever removal standard is set forth in the statute).

And, of course, independent agencies are still accountable to Congress, which can pass legislation to command the agency to change course and, short of legislation, can use its oversight toolbox to shape agency policy and behavior. Judge Kavanaugh knows this too, as it’s one of the solutions he outlines in Part III. So if I were wordsmithing Judge Kavanaugh’s discussion of accountability, I’d say that due to their further insulation from presidential control, independent agencies are less democratically unaccountable than their executive-branch peers.

Judge Kavanaugh concludes Part II by explaining how, “[i]n its recent Free Enterprise decision, the Supreme Court recognized the constitutional and practical issues that continue to result from the Humphrey’s Executor structure.” To do so, he provides a dozen bullet-pointed quotes from the Free Enterprise decision that illustrate these ongoing issues.

Reading Part II against the backdrop of Part I, Judge Kavanaugh is clearly concerned about political accountability in the modern administrative state and how a lack of accountability may affect both liberty and responsiveness to the will of the people. He views the President as playing an important accountability role: “The President is dependent on the people for election and re-election, but the officers of agencies in the Executive Branch are not. Presidential control of those agencies thus helps maintain democratic accountability and thereby ensure the people’s liberty.” And he views unique challenges to liberty and effectiveness in the context of independent agencies that are further insulated from presidential control.

If the concurrence ended with Part II, one could reasonably wonder how Judge Kavanaugh thinks we should resolve these constitutional and practical issues. Maybe he would argue that Humphrey’s Executor should be overturned and, thus, the President should have the authority to remove at will the heads of independent agencies. Or maybe he would argue that courts should interpret statutory “for cause” removal restrictions to allow for the President to more easily remove heads of independent agencies. Or maybe he would encourage the extension of presidential review of agency rulemaking to cover independent agencies.

But the concurrence happens to have a third and final part, one in which Judge Kavanaugh explores how to address “the issues of accountability, liberty, and government effectiveness raised by independent agencies.” Not only is overturning Humphrey’s Executor not suggested; Judge Kavanaugh expressly removes it from consideration. Here’s Part III in its entirety (excluding footnotes):

All of that said, Humphrey’s Executor is an entrenched Supreme Court precedent, protected by stare decisis. The point of explaining its history and continuing repercussions here is not to suggest that the case should be overturned. But the fact that courts do and must accept the Humphrey’s Executor precedent does not require ignoring the issues of accountability, liberty, and government effectiveness raised by independent agencies.

Various proposals have been advanced to enhance the accountability and effectiveness of independent agencies in a manner consistent with Humphrey’s Executor.

For example, writing for four Justices, Justice Breyer recently suggested that judicial review under the Administrative Procedure Act’s arbitrary and capricious standard perhaps should be more intensive when courts review actions of independent agencies. Justice Breyer noted that the independent agency’s “comparative freedom from ballot-box control makes it all the more important that courts review its decisionmaking to assure compliance with applicable provisions of the law—including law requiring that major policy decisions be based upon articulable reasons.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 129 S.Ct. 1800, 1829–30, 173 L.Ed.2d 738 (2009) (Breyer, J., dissenting). Justice Scalia, writing for four Justices, disagreed with that suggestion, arguing that there was “no reason to magnify the separation-of-powers dilemma posed by the Headless Fourth Branch by letting Article III judges—like jackals stealing the lion’s kill—expropriate some of the power that Congress has wrested from the unitary Executive.” Id. at 1817 (citation omitted). Of course, Justice Scalia has previously expressed severe criticism of Humphrey’s Executor. See Morrison v. Olson, 487 U.S. 654, 725–27, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (Scalia, J., dissenting). So his point in Fox seemed to be that he would prefer overruling Humphrey’s Executor to the half-a-loaf approach articulated by Justice Breyer.

Others have suggested, given the Article II backdrop, that an agency may be considered independent rather than executive only if Congress has expressly said as much, by placing for-cause limits on removal of the agency head. Indeed, Justice Breyer raised this issue in the Free Enterprise case. See Transcript of Oral Argument at 18, Free Enterprise Fund v. Public Co. Accounting Oversight Bd., –– U.S. ––, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (No. 08–861) (“The SEC. What … restrictions? Because, interestingly enough, my law clerks have been unable to find any statutory provision that says that the President of the United States can remove an SEC commissioner only for cause…. It’s silent.”); see also Free Enterprise, 130 S.Ct. at 3182–84 (Breyer, J., dissenting). For example, the FCC and the SEC were created in the interim between Myers and Humphrey’s Executor (that is, between 1926 and 1935), and Congress did not include for-cause removal provisions in their governing statutes, no doubt because such provisions were thought to be unconstitutional after Myers. In the wake of Humphrey’s Executor, it nonetheless became customary to treat multi-member commissions created without for-cause removal provisions in the interim between Myers and Humphrey’s Executor as if they were independent. But Congress never went back and actually made the SEC and FCC Commissioners removable only for cause.

Moreover, as President Roosevelt suggested in the wake of Humphrey’s Executor itself, Congress and the President remain free to craft legislation that would increase the accountability of these agencies by making the agency heads removable at will—accompanied, if Congress chooses, by more tightly drawn substantive statutes so as to prevent excessive delegations of power to the Executive Branch or perceived concentration of power in the President. Humphrey’s Executor holds only that independent agencies are constitutionally permissible, not that such agencies are constitutionally required. The political branches have their own authority and responsibility to interpret the Constitution in a situation like this and, in any event, are able as a policy matter to ensure that agencies are accountable to the people and run efficiently and effectively. Cf. Presidential Memorandum on Government Reform for Competitiveness and Innovation, 76 Fed.Reg. 14,273 (Mar. 11, 2011); THE PRESIDENT’S COMMITTEE ON ADMINISTRATIVE MANAGEMENT (“the Brownlow Committee”), REPORT OF THE COMMITTEE WITH STUDIES OF ADMINISTRATIVE MANAGEMENT IN THE FEDERAL GOVERNMENT (1937).

In other words, if I’m a member of the Senate Judiciary Committee who has read Justice Kavanaugh’s Aiken concurrence, I already know how Judge Kavanaugh would respond if asked whether he would overrule Humphrey’s Executor. Independent agencies, he would say, present issues of accountability, liberty, and government effectiveness. But, no, Humphrey’s Executor should not be overturned; it is an entrenched Supreme Court precedent, protected by stare decisis. Instead, we should explore other means to enhance the accountability and effectiveness of independent agencies in a manner consistent with Humphrey’s Executor. For instance, Justice Breyer has suggested a number of solutions that are worth considering, such as perhaps more-searching judicial review of actions by independent agencies when courts would usually defer to executive agencies in part due to their political accountability to the President and maybe a rule of statutory construction that presumes Congress doesn’t create an independent agency unless the statute includes a clear statement to that effect. And, of course, Congress should oversee carefully the actions of independent agencies and consider passing legislation to hold such agencies accountable when they stray from the will of the people.

We do not have to speculate about how Judge Kavanaugh would answer this question. He already provided his answer in Part III of his Aiken concurrence. This answer is reflective of Judge Kavanaugh’s approach to administrative law more generally, as I detail in my SCOTUSblog post. He is deeply influenced by a vision of separation of powers where both Congress (Article I) and the President (Article II) help ensure that federal agencies protect liberty, implement the policy objectives set forth by statute, and remain accountable to the people.