the law

Will Kavanaugh Give Trump the Power to Fire Anyone He Pleases?

Brett Kavanaugh shakes hands with President Trump during the Supreme Court justice’s ceremonial swearing-in on October 8, 2018. Photo: Chip Somodevilla/Getty Images

A few weeks before the 2016 election, Brett Kavanaugh, then a judge on the United States Court of Appeals for the D.C. Circuit, drew a lot of attention with a ruling concluding that the structure of the Consumer Financial Protection Bureau, conceived in the wake of the 2008 financial crisis, was unconstitutional. The agency, in the judge’s view, was simply too powerful and Congress erred when making its director independent of, and unaccountable to, the president of the United States. That design, as conceived by lawmakers, served the purpose of insulating the CFPB from undue political influence — say, from a mercurial president who wanted to dictate policy that benefits businesses rather than consumers, or from someone who merely cared more about his own partisan interests.

That didn’t matter to Kavanaugh. “As an independent agency with just a single Director,” Kavanaugh wrote in October 2016, “the CFPB represents a sharp break from historical practice, lacks the critical internal check on arbitrary decisionmaking, and poses a far greater threat to individual liberty than does a multi-member independent agency.” To his credit, he didn’t go all the way and vote to strike down the entire agency, or the Dodd-Frank Wall Street Reform and Consumer Protection Act, which created it. He limited his ruling to placing the bureau’s director within presidential control. “As before, the CFPB will continue to operate and perform its many critical responsibilities, albeit under the ultimate supervision and direction of the President,” Kavanaugh wrote.

Kavanaugh’s decision had little lasting power. The full D.C. Circuit soon after scrapped it and agreed to hear the dispute anew, months after Trump took office. Outnumbered by Democratic appointees to that court, Kavanaugh was now in the minority, and there was little chance he’d get his way. And he didn’t. “Congress’s decision to provide the CFPB Director a degree of insulation reflects its permissible judgment that civil regulation of consumer financial protection should be kept one step removed from political winds and presidential will,” a majority of Kavanaugh’s colleagues ruled, applying historic precedents that conservatives have long despised.

Now promoted to the Supreme Court, Kavanaugh will get another bite at the agency’s independence; Seila Law v. Consumer Financial Protection Bureau, which Kavanaugh and his fellow justices are expected to rule on before the end of June, may give him the last word. The case is technical but consequential, as what the Supreme Court does with the decision has implications beyond the CFPB. The ruling’s language, if not cabined, could spell doom for other aspects of the federal government — at a moment when Trump’s indifference toward his coronavirus response has heightened Americans’ awareness of the need for expert, apolitical leadership in the nation’s health and financial institutions.

Consider Glenn Fine, the acting inspector general of the Defense Department, the respected watchdog Congress designated to lead the COVID-19 stimulus oversight panel: Trump removed him from his post. Or Jerome Powell, the Federal Reserve chairman working overtime to keep the national economy from the brink: Trump floated stripping him of his title. Or the beloved Anthony Fauci, the longtime infectious-disease expert in the White House coronavirus task force who has been the voice of reason during a chaotic federal response: Trump retweeted a MAGA personality calling on the president to fire him. In the hands of someone like Trump, independence and expertise are as disposable as contestants on The Apprentice.

That’s exactly how things should be, according to Kavanaugh. At the hearing to reconsider the CFPB’s future in May 2017, he raised the hypothetical of a future Democratic president — say, Massachusetts senator Elizabeth Warren, a key legal architect of the financial bureau — being hamstrung from appointing someone of her choosing. With then-CFPB director Richard Cordray’s term set to expire in 2018, Trump would be free to appoint a lackey insulated from presidential control until 2023 — well into a prospective President Warren’s first term. “I look at that reality and say, ‘That’s crazy,’” Kavanaugh pondered at the time. Shortly before the D.C. Circuit ruled and Kavanaugh lost the legal battle, Cordray wound up leaving on his own terms. Trump then appointed a regulator, Kathleen Kraninger, who isn’t exactly a pro-consumer champion and thus doesn’t have many Democratic fans on Capitol Hill. (Mick Mulvaney served a short stint before her in an acting capacity.) She also happens to believe that her own job security, as provided by law, is unconstitutional. In other words, she agrees, unlike her predecessor, that Trump can show her the door at any time, despite Dodd-Frank’s protections for the bureau’s director.

And so the battle for the soul of the CFPB rages on, and Kavanaugh will have an opportunity, alongside his other conservative colleagues, to tell the nation whether independent agencies, free from political interference, are permissible not just in the age of a mad-king president but at a time when voices inside the government daring to speak with truth and science are being silenced.

On the same day the justices heard Seila Law in early March, a divided judicial panel on the conservative U.S. Court of Appeals for the Fifth Circuit, based in New Orleans, appeared keenly aware that the Supreme Court would soon settle once and for all the future of the consumer bureau. But the panel, which was considering a similar case, went ahead and concluded on its own that Congress’s decision to shield the CFPB director from presidential meddling is better for checks and balances and the presidency itself. “The President can remove the CFPB Director only for ‘inefficiency, neglect of duty, or malfeasance in office,’ a broad standard repeatedly approved by the Supreme Court,” Judge Patrick Higginbotham, a senior judge appointed by President Ronald Reagan, wrote for himself and another colleague. “That alone is enough to decide this case. If there is any threat of undue concentration of power, the Office of President is its beneficiary.”

That same Dodd-Frank standard for removing the CFPB director — “inefficiency, neglect of duty, or malfeasance in office” — is at issue in Seila Law. The case may be a sleeper, but its consequences could be profound, as conservative legal theorists, including some in power, have insisted for decades that the head of the executive branch gets to control every corner of the federal bureaucracy. If today that means the CFPB director should get to dance to the tune of the president or be ordered to not dance at all, tomorrow that reasoning could extend to administrative judges or the entire professional civil service. Everyone would be on the chopping block. “All would become removable by the president at will,” Peter Shane, a legal scholar of presidential power at Ohio State University’s Moritz College of Law, wrote in The Atlantic. In a follow-up email, Shane told me that the Supreme Court could well write the opinion in Seila Law in such a way that is “rife with language about the supposed importance of presidential policy control over ALL agencies.” (Emphasis his.)

This kind of “aggressive presidentialism,” as Shane likes to call it, is not a new theme for the Trump administration or Republican administrations more generally. From the onset of Robert Mueller’s investigation into Russia’s interference in the 2016 election, the president has asserted his unequivocal right to fire anyone he pleases, including civil servants that are under the direct supervision of other department heads or agency officials. Defending himself from Mueller’s conclusion that he had attempted to get the special counsel dismissed through Donald McGahn, the former White House counsel, Trump told reporters last year that his removal power can’t be second-guessed. “If I wanted to fire Mueller, I would have done it myself,” Trump said. “It’s very simple. I had the right to. And frankly, whether I did or he did, we had the absolute right to fire Mueller.” In recent weeks and months, Trump again has asserted his removal authority against several nonpartisan federal watchdogs who don’t enjoy firing protections, including the inspector general of the intelligence community, who played a role in turning over to Congress the whistleblower complaint that led to the president’s impeachment. In response, good-government advocates and Democrats are calling for legislation to protect future inspectors general with a provision that’s similar in nature to the one protecting the CFPB director. As it stands, the Inspector General Act of 1978 is flimsy in that it only requires the president to give Congress a heads-up before a dismissal can take effect.

Whether the five-justice conservative majority on the Supreme Court, to which Kavanaugh belongs, would bless such a protection for independent watchdogs or agencies, like the one at issue in Seila Law, remains an open question. In recent years, that invigorated majority has expressed strong views on executive power, including an appetite for defanging the federal bureaucracy — by showing an inclination to revive long-forgotten legal doctrines that purport to tell Congress how to do its job or abandoning others that, in conservatives’ minds, grant too much deference to unelected federal overseers. The through line seems to be disdain for Article I of the Constitution, which sets up the legislative power, while giving a pass to Article II, which sets up the presidency but largely depends on the laws, funding, and pretty much all the tools only the former can confer to run a functioning government.

Removal constraints on the president by Congress are a subset of those same concerns, but the constitutional text doesn’t provide much guidance on whether they’re permitted. “Impeachment aside, the President’s power of removal was little discussed at the Constitutional Convention and is not addressed in the Constitution,” Judge Higginbotham wrote in his pro-CFPB opinion from March. In his letter informing Congress of Intelligence Community Inspector General Michael Atkinson’s removal, Trump only speaks of his “power of appointment, by and with the advice and consent of the Senate,” which is spelled out in the Constitution — but says nothing about any inherent removal power, maybe because there’s no part of the founding text he could point to. In a recent essay surveying what the Constitution says, or doesn’t say, about the president’s power to remove executive officials, Cordray observed that the Constitution is much more pragmatic than the blunt instrument conservatives make it out to be, allowing for “some interplay” between Congress, the president, and the courts. Which is to say, every power constrains the others to some extent. And thus, much of the apolitical federal workforce that exists today flows from a widespread acceptance of “modest” congressional restraints on the president’s removal authority. These protections “are not consistent with an all-powerful executive who can control every rank of executive officials according to his or her whims,” Cordray wrote. The sky hasn’t fallen.

For decades, conservatives in academia or in Republican administrations have been singing a different tune — and if they had their druthers, they’d burn it all down. Or at least some of them would. In a recent Politico article about how the Trump administration is treating federal workers during the coronavirus pandemic, reporter Daniel Lippman buried deep in the story how Michael Rigas, the acting head of the Office of Personnel Management, doesn’t much believe in the civil service that is the bedrock of federal government service. “Rigas has told colleagues that he questions the constitutionality of the 1883 Pendleton Act, which codifies using merit to pick government officials, and believes that all executive branch employees should be political appointees,” Lippman wrote, citing a person familiar with Rigas’ thinking. Kavanaugh himself, in the run-up to 2016, volunteered at a conservative gathering that he would “put the final nail inMorrison v. Olson, the 8-to-1 ruling that upheld the independent counsel law, since lapsed, that allowed for the Kenneth Starr-led prosecution of President Bill Clinton. That ruling and Humphrey’s Executor v. United States, which upheld removal protections for members of the Federal Trade Commission, remain binding precedent to this day. “Those cases indicate that the for-cause removal restriction protecting the CFPB’s Director does not ‘impede the President’s ability to perform his constitutional duty’ to ensure that the laws are faithfully executed,” wrote a unanimous panel on the U.S. Court of Appeals for the Ninth Circuit last year. That’s the ruling the Supreme Court is now reviewing in Seila Law.

For many conservatives, both Morrison and Humphrey’s Executor have become causes célèbres worthy of overruling; Kavanaugh suggested as much in his own 2016 opinion frowning on the CFPB’s structure. When a majority of the full D.C. Circuit overruled him more than a year later, Kavanaugh, this time in dissent, all but declared that both cases are anomalies. “Neither Humphrey’s Executor nor any later case has granted Congress a free pass, without boundaries, to create independent agencies that depart from history and threaten individual liberty,” he wrote. A few pages later, quoting from an earlier opinion, he noted that judges should “hold the line and not allow encroachments on the President’s removal power beyond what Humphrey’s Executor and Morrison already permit.” Before the Supreme Court, the Trump Justice Department went one extra step, arguing: “If the Court were to conclude, however, that Humphrey’s Executor or any of its progeny requires upholding the removal restriction for the Bureau’s Director, those decisions should be narrowed or overruled as necessary.”

It helps Kavanaugh’s cause and that of other conservatives claiming that the CFPB has superpowers that the Trump administration is on their side. Since the Justice Department, which normally defends federal agencies embroiled in litigation, was not willing to stand up for the CFPB director’s independence when the case landed before the Supreme Court, the justices had to appoint an outside lawyer to defend it. The lawyer, the powerhouse conservative litigator Paul Clement, dazzled at the March hearing standing up for the agency — he did such a good job, at one point he seemed to exasperate Justice Neil Gorsuch, who over the years has written at length about how the federal bureaucracy can be a threat to everything we hold dear. “If we could avoid disparaging our colleagues and just answer my question, I would be grateful,” Gorsuch told Clement, clearly bothered by the lawyer’s jabs at the Justice Department’s own lawyer, Solicitor General Noel Francisco. During his turn at the lectern, Francisco said that the administration had chosen not to defend the CFPB’s structure because “the general presumption that we will defend acts of Congress has an exception built in when the act of Congress infringes upon the president’s own executive power.” Among other arguments, Francisco also warned of a doom-and-gloom scenario where a future president might be restricted, should the CFPB remain intact, from even firing cabinet secretaries from a prior administration — which he termed “a wholesale revolution in separation-of-powers principles.”

Clement handily swatted those concerns away. The thrust of his presentation was that Congress has for a very long time set up independent agencies and bodies where the president can’t just do whatever he wants with their appointed leaders. They don’t serve at his pleasure. Under the law, the president of the United States may only remove the head of the CFPB for cause, which is legal-speak for a really good reason — a formulation that’s by no means unique in the federal government. To conservatives in the Trump administration and Kavanaugh, that limitation is a threat to liberty because to them the president, not the CFPB director, is accountable to the public. No one should tell him how to exercise his executive power, how he should faithfully execute the law, or whom he has the authority to fire. But as Clement and Justice Stephen Breyer observed at the hearing, there are a number of other independent agencies and bodies, like the Federal Reserve Board or the Federal Trade Commission, that are insulated from the whims of a president because the representatives closer to the people, Congress, have so determined. And because a different arrangement would lend itself to executive mischief. “We don’t want the president to juice up interest rates right before a presidential election, so we’re going to give that to somebody who is insulated,” Clement offered as an example. (Less than two weeks after the hearing, Trump actually did threaten to fire or demote Jerome Powell, the Fed chair, though he enjoys statutory removal protections as a member of the Federal Reserve Board of Governors.) With Seila Law, the Supreme Court could easily hand Trump more ammunition to declare he has the “absolute right” to fire anyone he pleases, including those the law insulates.

Kavanaugh, for his part, seemed to care more about a different kind of “real-world consequence” — the same one he floated three years ago as an appeals judge, in a courtroom a few blocks away from the Supreme Court. “How much does it matter that the tenure of the single director continues into the next president’s term?” he asked at the March hearing. “Because I think that’s when the problem really reveals itself, that the next president is going to have to deal for his or her whole term, potentially, with a CFPB director appointed by this president and will not be able to supervise or direct that person, even if that president has a wildly different conception of consumer financial protection.” To the extent that is a real problem, it is debatable that a President Joe Biden would be completely powerless to remove Kraninger, the current director. He may decide, as the law prescribes, that she is “inefficient” in protecting consumers, as some Democrats believe she is, and thus fulfill Congress’s wishes by showing her the door on that ground; it’s not like the agency during her tenure hasn’t already engaged in questionable behavior. Or she may leave on her own, without a power struggle. Justice Sonia Sotomayor suggested at the hearing that the absence of such a presidential standoff in this case, where both Trump and Kraninger agree on her removability, rendered the dispute “academic.”

And yet, in a broader sense, the prospect of a president politicizing crises and agency decision-making is not at all academic. The future of the CFPB matters because expertise and policy solutions without political interference have always mattered. As if to inject an added dose of reality to the proceedings, Clement during his argument raised the specter of a president intent on politicizing a public-health emergency, and the dire consequences that would flow from that. “In the current situation, you see people are trying to make a political football out of dealing with a pandemic disease,” Clement said in a not-so-veiled reference to the government’s fumbled response to the coronavirus. “So maybe Congress decides: You know what makes sense? Let’s have the head of CDC be protected by for-cause removal because that’ll make sure people get good advice and it doesn’t become political.” Such legal protections simply don’t exist at the moment, which means Trump could handily, and constitutionally, act on the recent calls to #FireFauci that have emerged on the right. Similarly, at least one health expert who was removed from his post after resisting Trump’s unproven pharmaceutical fixations has already raised alarms. Doctors like him deserve protections too. Kavanaugh and other conservative legal activists may think congressional limits on the president’s removal authority, even in the realm of public health, are bad for the presidency overall. But what’s bad for the presidency may be precisely what the nation needs right now.

Cristian Farias, a former legal columnist with New York’s Intelligencer, is a writer in residence at the Knight First Amendment Institute at Columbia University.

Will Kavanaugh Give Trump the Power to Fire Anyone He Wants?