How does academic work enter the arenas of policy, politics and justice? For 鶹ý Politics Professor Amanda Hollis-Brusky, first it gets published in a law review journal, then it is cited by U.S. senators in their amicus brief for a Supreme Court case. Senators Sheldon Whitehouse, Richard Blumenthal and Mazie Hirono extensively cited Hollis-Brusky’s work in their case brief for an upcoming case that may decide the fate of a consumer protection agency. Arguments for Selia Law v. Consumer Financial Protection Bureau (CFPB) are set for March 3.
Hollis-Brusky explains the core of her research article and how it is relevant to the upcoming Supreme Court case:
Your 2011 research, published in the Denver Law Review, was recently cited by U.S. senators in their brief for a Supreme Court case. What was your journal article about?
That article traced the intellectual development and impact of the “unitary executive theory” – which is a constitutional theory that has been used by Republican presidents and their lawyers to justify everything from dismantling the administrative state to justifying indefinite detention for Guantanamo Bay detainees to ignoring congressional reporting requirements concerning the conduct of the War on Terror. Some scholars have called the theory “Article II on steroids” because it reads into the second article of the constitution expansive powers for the president to act without congressional approval in a variety of policy areas – domestic and foreign. I found in my journal article that the Federalist Society for Law and Public Policy Studies – the conservative legal think tank that I wrote about – was responsible for originating that theory during the Reagan Administration and its members played a critical role in deploying it during the George W. Bush Administration, especially in defense of his War on Terror policies.
What is the Selia Law v. Consumer Financial Protection Bureau Supreme Court case about?
This case is challenging the constitutionality of the Consumer Financial Protection Bureau (CFPB). You might recall that the CFPB was created as part of a big package of reforms implemented by the Democratic Congress and signed into law by President Barack Obama in the wake of the financial crisis. The brainchild of then-professor, now senator and presidential candidate Elizabeth Warren, the CFPB is a watchdog agency that protects consumers from predatory lending and credit practices, regulates and monitors the mortgage industry, has regulatory power over banks and debt collectors and other parts of the financial services sector. The CFPB is structured as an independent agency within the executive branch. That independence is critical to its ability to function as a watchdog organization and to fulfill its mission. But that independence is the very thing being challenged as unconstitutional in Selia Law v CFPB. Conservatives, drawing on the “unitary executive theory” that was the subject of my law review article, are arguing that because the head of the CFPB is not removable by the president “at will,” the entire agency is unconstitutional.
Why is this case important? Are there any other independent agencies at risk?
This case will have very serious consequences for the separation of powers and the structure of federal regulatory agencies moving forward. If a majority of the Supreme Court agrees that the CFPB is unconstitutional, then other independent agencies could be challenged on the same grounds. The big one that came up when a similar challenge was raised by conservative lawyers in the Reagan administration is the Federal Reserve, known to many of us as “the Fed.” In fact, the specter of going after the Fed was enough to scare eight of the nine justices into rejecting the Reagan department lawyers’ arguments back in 1989. Incidentally, the lone dissenting justice in that Reagan-era case was Justice Antonin Scalia, who was one of the founding advisors to the Federalist Society. With five Federalist Society justices now on the Supreme Court (Clarence Thomas, John Roberts, Sam Alito, Neil Gorsuch and Brett Kavanaugh), the exact same arguments that failed during the Reagan administration now have a very good chance of succeeding.
Will you start publishing in Law Reviews again? Why or why not?
It’s interesting because the currency in political science is peer-reviewed journal articles and books. These are what count. These are what get you tenure, respect and recognition in the field. But the currency in the legal world – which overlaps significantly with the policy and lawmaking worlds – is law review articles (which are not peer-reviewed in the same sense). Therefore, this one law review article that I wrote in 2011 – that in most places would not even count for tenure in political science – might end up having more of an impact than every peer-reviewed article I ever wrote. So, to answer your question, yes, I’ll probably do more of this kind of work now that I am tenured. In fact, I am working on a piece now that was an invited contribution to a special edition of a law review on the Trump impeachment.
What’s next for you? What books or publications are coming down the pipeline?
I’m excited to report that my second book is now in production and will be out this October with Oxford University Press. It’s called “Separate but Faithful: The Christian Right’s Radical Struggle to Transform Law and Legal Culture.” I’ve been working on that project for almost nine years so it is satisfying to know that it will be out there in the world soon. Meanwhile, I’ve started work on the next project which, interestingly enough, picks up from and continues work I started in the 2011 law review article that was just cited in the Senators’ amicus brief. It’s tentatively called “Wicked Men: How Lawyers Built the Imperial Presidency” and it will use the same kind of process tracing and analysis I applied to the “unitary executive theory” to understand the impact that executive branch lawyers have had over time on the growth of presidential power – up to and including both the Obama and Trump administrations.
I’m also throwing myself into my new role on the editorial board of The Monkey Cage blog at the Washington Post. As part of the American politics team, my job is to solicit pieces by political scientists that draw on political science research and scholarship that explain or help provide insights into current events. The work is fast paced, challenging and exciting and I am just learning a ton.