August 28, 2018

Judge Kavanaugh and the Constitution


  • Judge Kavanaugh has made protecting the separation of powers a priority on the D.C Circuit Court of Appeals, the circuit court which hears most major administrative law cases.
  • The constitutional separation of powers, with its checks and balances, protects against the growth of unaccountable government and its encroachment on individual liberty.
  • Judge Kavanaugh’s views on the separation of powers are clear from his 12 years on the bench and roughly 300 published opinions.

In a speech earlier this year, Judge Brett Kavanaugh laid out his simple but powerful approach to constitutional issues: “Read the text of the Constitution as written, mindful of history and tradition.” In another speech, he explained that “one factor matters above all in constitutional interpretation and in understanding the grand sweep of constitutional jurisprudence – and that one factor is the precise wording of the constitutional text.”

Judge Kavanaugh Cares about What the Constitution Says the Branches Do

Separation of Powers

That precise wording, according to Judge Kavanaugh, ensures that each branch of government does not usurp the prerogatives of the other branches. The checks and balances prevent any one branch from infringing on individual liberty.


Judge Kavanaugh has made protecting the constitutional separation of powers a priority in his jurisprudence on the D.C. Circuit, the circuit court which hears most major administrative law cases. As administrative law expert Christopher Walker noted, Judge Kavanaugh’s decisions on the D.C. Circuit, coupled with his other writings, “reveal a judge who takes separation of powers seriously.”

Two of Judge Kavanaugh’s dissents provide evidence of his approach to separation-of-powers cases. In a case involving the method for appointing and removing members of the Public Company Accounting Oversight Board, two of the three members of a D.C. Circuit panel held that the board’s structure was constitutional. Judge Kavanaugh dissented. The Supreme Court agreed with Judge Kavanaugh.

The Sarbanes-Oxley Act created the PCAOB to oversee audits of public companies. The act provided that board members were appointed, and could be removed only for cause, by the Securities and Exchange Commission. In turn, SEC commissioners can be removed by the president only for cause.

Judge Kavanaugh concluded that this structure was unconstitutional. He noted that the “President’s power to remove is critical to the President’s power to control the Executive Branch and perform his Article II responsibilities.” He reasoned that the PCAOB’s “structure effectively eliminates any Presidential power to control the PCAOB, notwithstanding that the Board performs numerous regulatory and law-enforcement functions at the core of the executive power.”

He further explained that the “Framers of our Constitution took great care to ensure that power in our system was separated into three Branches, not concentrated in the Legislative Branch; that there were checks and balances among the three Branches; and that one individual would be ultimately responsible and accountable for the exercise of executive power.” While the PCAOB was designed to be outside of presidential control, Judge Kavanaugh cautioned that our “constitutional structure is premised ... on the notion that such unaccountable power is inconsistent with individual liberty.”

Dissenting in another case, Judge Kavanaugh would have struck down wide-ranging net neutrality rules issued by the Obama-era Federal Communications Commission for exceeding statutory authority. As Judge Kavanaugh made clear, under the Constitution, the “Executive Branch does not possess a general, free-standing authority to issue binding legal rules” and “may issue rules only pursuant to and consistent with a grant of authority from Congress.”

Judge Kavanaugh reviewed the FCC’s rule under the “major rules doctrine.” He explained that while agencies may fill gaps in statutes by issuing ordinary rules, major rules — in which an agency exercises “expansive regulatory authority over some major social or economic activity” — require clear congressional authorization. Because the FCC rules were major, and the statute that the FCC grounded its authority in provided no clear authority, Judge Kavanaugh would have struck them down.

Issue Tag: Judiciary