Justice Kavanaugh's concurrence in FCC v. Consumers' Research is one of his most significant separate writings. He lays out a roadmap for how he sees the separation of powers, and in particular the removal power cases.
First, as I was reading Justice Kavanaugh's concurrence, I could hear the voice of a former White House lawyer. Indeed, Kavanaugh stresses how former Justices who served in the Executive Branch Court accepted the "intelligible principle" test:
Notably, the intelligible principle test was accepted and applied over the years by Justice Scalia, Chief JusticeRehnquist, and Chief Justice Taft—three jurists who, based on their Executive Branch experience and judicial philosophies, deeply appreciated the risks of undue judicial interference with the operations of the Presidency.
