Judge Brett Kavanaugh’s nomination to the Supreme Court has drawn timely attention to the “unitary executive” theory of Article II. The theory is not associated with Kavanaugh alone, and his views might not alter the balance of power on the Court. Indeed, it is important to point out that some of Justice Kennedy’s votes on presidential authority are at least congruent with the unitary executive theory. Nonetheless, Kavanaugh’s nomination is a chance to evaluate the theory’s implications for the problem of high-level criminality. For Kavanaugh’s academic writing on the topic, intentionally or not, casts light on some deep questions about the theory’s compatibility with the rule of law.    

The “unitary executive” theory of Article II is centrally associated with the idea of vertical presidential control of personnel within the executive branch. In two law reviews, Judge Kavanaugh touches on another of its implication: How are errant chief executives and their coteries to be held to account?

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