Judge Kavanaugh Views On Independent Agencies Scary!

Discussion in 'Law & Justice' started by JimfromPennsylvania, Oct 6, 2018.

  1. JimfromPennsylvania

    JimfromPennsylvania Active Member

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    Judge Kavanaugh views that the Constitution does not allow for Independent agencies within the government to be set-up where their leadership can only be removed for cause by the President there must be at-will removal allowed for the President. This is alarming because this would politicalize the work they do so instead of the best interest of the American people being the North Star for these agencies it would be the best interest of the President. There is an abundance of agencies that fall into this independent agencies category to just list some names the SEC, the Commodities Futures Trading Commission, the Fed and the FTC this change if it ever takes place would be like dropping numerous government nuclear bombs on our nation's government.



    That I know of Judge Kavanaugh wrote three opinions in this area of the law and scrutinizing these three cases one can see problems or reasons why Judge Kavanaugh doesn't meet the threshold on various qualities that an appellate judge at the Supreme Court level should hold. In order to fairly evaluate these cases one should have an understanding of what this law entails. This area of the law is called the Separation of Powers area it refers to the principles of how our government was set-up. It was set-up where Congress's job is to make the laws, the President's job is to enforce the laws and the Court's job is to interpret the laws. In this area of the law the broad issue is Congress in passing laws and creating these agencies or officers to execute U.S. laws often puts restrictions on the removal of the leadership of these agencies or officers by the President and the legal question is is this constitutional is the Congress infringing on the power of the President is it violating this overarching Constitutional principle of Separation of Powers. Now Article Two of the Constitution defines the power of the Presidency so the Supreme Court and many other U.S. appellate Courts when they do their constitutional analysis on the fact patterns of these cases they start with two specific provisions of the constitution an Article 2 Sec. 1 provision which says "the executive power shall be vested in a President" and an Article 2 Sec. 3 provision which says "(the President) shall take care that the laws be faithfully executed". The courts interpret this as meaning that it is the President's job/duty to see that the laws are executed the way they're supposed to and to fulfill this duty the president must have the power to remove the officers in the Executive Branch of government whose job is to execute the laws that are not properly executing those laws. The courts framework in evaluating these cases is essentially a testing to determine if the legislative scheme the Congress used in restricting the President's removal power is it an obstruction on the President fulfilling this duty. Plenty of Conservative Justices view these cases this way Justice Rehnquist wrote an opinion utilizing this framework as well as Justice Roberts.



    On the other hand you have Judge Kavanaugh's framework on these cases and it isn't the above straightforward constitutional analysis. Judge Kavanaugh analysis goes like this. What is at stake in these cases is individual liberty, execution of laws infringes on individual liberty or freedom and only the President can adequately protect this liberty because the President is accountable to the people of further importance is that the President must have "at will" removal power over these officers because otherwise he won't be able to fully protect individual liberty. Judge Kavanaugh comes up with this framework by cherry picking portions of records from around the time of the adoption of the constitution and court opinions and referencing them as calling for and defending this framework; its not following the law and it isn't good legal analysis.


    Judge Kavanaugh's opinion in these cases reveals a lot of bad legal analysis. In his PHH Corporation v Consumer Financial Protection Bureau case 881 F.3d 75 (2018) the issue was whether this new agency the CFPB created by the Dodd-Frank law and its authority arrangement with one head removable only for cause by the President was unconstitutional (violated the separation of Powers principle in the constitution) as opposed to a commission authority arrangement which is the common authority structure for independent agencies. Judge Kavanaugh dissented and ruled it was unconstitutional because it was not a commission it was a single head. Part of his reasoning is that he considers that all independent agencies where their leadership is removable only for cause have commission or board leadership so that he believes that the constitutional legitimacy of this type of removal is limited to these types of agencies (p 68). A reasonable person should think this logic is flawed because the independent agency the Federal Reserve Board is really practically lead by one person the Fed Chair the other members of the Board are really advisory roles. Another part of his reasoning is again you have this protecting liberty litmus test, (check and accountability on leadership provides this protection) in executive agencies where of course the head is removable at will you have the President who is providing check and accountability in independent agencies the President is providing no check and accountability it passes the test only because members of the commission provide check and accountability on one another (page 75 et al.). This logic is flawed because check and accountability is really being provided by the person being given another term of office in the President's case by the election every four years but the President can and does give check and accountability to these commission members by either renewing their terms or not.


    Judge Kavanaugh in this opinion puts great emphasis on the fact that in these commission authority arrangements of independent agencies the President can always remove the chair of these commission or boards at will and this supposed fact holds great sway on why the commission authority structure is constitutional (page 78). I don't believe all the commission authority structures for independent agencies throughout the government have at will removal of the chair I could be wrong I haven't had time to fully investigate but I went on the website of the Federal Reserve and read the section on the Board of Governors of the Federal Reserve System where it describes that the President appoints the Fed Chair to a four year term with the advice and consent of the Senate nothing mentioned about the next President being able to remove that chair at will. If my contention is accurate it bears mentioning that Supreme Court Justices shouldn't make such legal reasoning errors made here. On another vein Judge Kavanaugh writes a view on the Constitution which I believe and a correct interpretation would believe is not accurate! Judge Kavanaugh writes "the Constitution's separation of powers is not solely or even primarily concerned with preserving the powers of the branches. The separation of powers is primarily designed to protect individual liberty.".


    As the American people have learned this past Friday the Senate Republican leadership now have the votes to confirm Judge Kavanaugh. So at this time I would like to highlight two glaring lessons the American people learned from this confirmation process. One that Senator Lindsey Graham should retire because his connection to dignity is hanging by threads. On the first round of Senate Judiciary committee questioning he incriminated himself by saying he wasn't going to read Judge Kavanaugh's book on overturning Supreme Court precedent and on his second round of questioning he loudly incriminated himself I just don't have time hear to review the tape. But moreover, Senator Graham's focus on Dr. Ford's lawyer being a Democrat lawyer this is not relevant it wouldn't be relevant if Senator Feinstein had a brother who was a lawyer and recommended him to Dr. Ford and she hired him, Senator Graham you are acting like a twit here. Senator Graham the core of your Senator Republican Caucus does not accept you because you try to be good unfortunately your definition of good means being loyal to your caucus this far-right core doesn't care about being good they only care about doing what they want to do which is further selfish interests and help the wealthy and big business in America! You going out into the media on behalf of your caucus gives legitimacy to this far right core because you're basically a good man which translates to them, step out of the spot light so the Republican leadership has to send out one of their orcs to represent them in the media and the American people can see them for what they are!



    Secondly, that Senator Susan Collins should stop prancing around Washington D.C. and holding herself out to America likes she is some great Senator that if the nation needs her she will exhibit extraordinary virtue to protect the country she is a run of the mill partisan Senator she displayed this character in last year's tax bill fight and she affirmed it on this nomination! Senator Collin's you ain't know Senator Olympia Snowe who if a matter was of extreme importance to the country she wouldn't care if the entirety of her caucus was against her and lividly against her she would do what is right and vote for what is right! Senator Collins you could have easily been a "no" vote on the nomination because you recognize a women's fundamental right to an abortion during the early stages of her pregnancy and you hold that right precious; and, Judge Kavanaugh in his abortion opinion Garza v. Hargan clearly demonstrated that the Roe holding recognizing this right is in his cross hairs. Senator Collins on this basis and the basis of you standing up for your gender that the sex crime allegations against Judge Kavanaugh were not fairly and responsibly investigate by the FBI because they deliberately ignored witnesses would have given you cover to vote "no" but you succumbed to peer pressure, you aren't a great leader Senator you're a follower! It's terrible this new standard that Senator Collins set here for confirming Justices to the Supreme Court people will describe it as a nominee can have a track record where he or she behaved as the Devil's son or daughter and during the nomination process find the issues a crucial Senator cares about and agree to the positions that Senator wants and become an angel and get confirmed!


    Republican leaders and their allies should know two things. This ain't over with you confirming Judge Kavanaugh! To many good persons in America your putting him on the Supreme Court is an intolerable affront to the goodness that makes up America and we will figure out a way to get him off this Court and I am not referring to any breaking of the law here. You Republicans it is completely unacceptable you turning America's system of filling a seat on the Supreme Court into a solely political exercise. Judge Kavanaugh did not meet the threshold level for an Appellate Judge at the highest court level for multiple qualities; following the law, integrity in citing other cases, quality of Judicial analysis, views on the Constitution such as gun control, legality of public and private policy to be fair to all races in America and Judicial character. It is disqualify character to use circuit court opinions as job resumes for the job of a Supreme Court Judge even his fellow Judges seemed to pick up on what he was doing here as evidence by their comments in their opinion on these cases! The second thing is that in my opinion history will conclude that the Republican leadership was outstandingly foolish for pursuing confirming Judge Kavanaugh to the Supreme Court because they could have readily confirmed a solidly good conservative Justice to the Supreme Court that would have been on that Court for decades Judge Kavanaugh will not have a decades long tenure on the Court because at minimum many Americans will strongly dislike and even despise him on the Court and it will rise to the level of palpable opposition and it will never subside as long as he sits on this Court and it will lead Judge Kavanaugh to conclude that it isn't worth it to me to pay this price to hold this job and he will resign. One question I have about the Republican's filling this seat with Judge Kavanaugh. The Constitution does not just mandate the Senate consent on the nomination but also advice on the nomination. I don't see how the Republican's pass the threshold for the latter requirement with their facts which you have the President who selects a nominee for the Supreme Court with no significant allegations of serious sexual crimes in his past sends the nomination to the Senate where when they conduct their process three allegations of serious criminal activity arise allegations that have real evidence behind them an eye witness statement from a credible person and the Senate then obstructs a fair and responsible investigation of these allegations!
     
  2. Empress

    Empress Well-Known Member

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    Oh, Jim is scared again.

    Yeah so you didn't source anything but just rambled off personal opinion. That's why nobody's responding.
     
    Turtledude and Ndividual like this.
  3. modernpaladin

    modernpaladin Well-Known Member

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    Its not a supreme court justice's job to determine what is best for the country. Whether a president should have total executive power over an agency is immaterial to the justice. The justice's purpose is to determine whether the constitution creates or allows that power or not. That is all a SC justice is meant to do.
     
    Last edited: Oct 8, 2018
  4. Turtledude

    Turtledude Well-Known Member Past Donor

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    love to see the Chevron deference standard evaporated.
     
  5. Ndividual

    Ndividual Well-Known Member

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    "We have to pass the bill so that you can find out what is in it." - Nancy Pelosi
     
  6. perdidochas

    perdidochas Well-Known Member

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    The Constitution doesn't allow for independent agencies not answerable to Congress and/or the President other than the courts. I agree totally with Kavanaugh on that.
     

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