National Review Online distorts Kagan article on presidential power beyond recognition

Blog ››› ››› ADAM SHAH

In a post for National Review Online's Bench Memos blog, Bradley C.S. Watson asserts that Solicitor General Elena Kagan's "nomination to the Supreme Court should give Americans reason to reflect on the progressive assault on the Constitution that has been ongoing for a century or more." In his post, he asks whether Kagan is "more concerned with establishing new command and control mechanisms that can be applied -- largely if not exclusively for progressive purposes -- to the American economy and moral-cultural order." In order to back up his claim, Watson distorts a law review article Kagan wrote beyond all recognition and claims that there are similarities between Kagan and Glenn Beck bogeyman Woodrow Wilson.

Watson writes:

Elena Kagan understands progressive aspirations well. In a June 2001 Harvard Law Review article entitled "Presidential Administration," she argued that more direct presidential control over the details of administration could further the ends of the regulatory state. Furthermore, she made the case that courts should be deferential to such presidential administration in light of the fact that, in the Clinton years, "presidential supervision" served as a "mechanism to achieve progressive goals," including favoring regulation rather than trying to suppress it. She argued that courts should "recognize and promote this kind of control over agency policymaking" through various modifications of existing non-delegation and judicial review doctrines.

"The Study of Administration" was the title of one of Wilson's most influential essays. Like Wilson, Kagan has skillfully attempted to reinvigorate that study. She claims to be concerned with accountability and efficiency within the otherwise diffuse American system of divided powers and checks and balances. But is she more concerned with establishing new command and control mechanisms that can be applied--largely if not exclusively for progressive purposes--to the American economy and moral-cultural order? Senators have an obligation to ask her, and not take "maybe" for an answer.

But Kagan's law review article bears little resemblance to what Watson claims. First, Kagan did not argue that presidential power can or should be used "exclusively for progressive purposes." In fact, she argued the opposite. Kagan wrote that Democratic presidents and Republican presidents can both use presidential powers to better achieve their goals.

Second, unlike conservatives such as former President Bush, former Vice President Dick Cheney, and Bush administration lawyer John Yoo, she firmly embraced checks and balances, explicitly saying that Congress could limit the power of the president.

Indeed, Yoo -- the author of the infamous torture memos, which argued that the president had the power to override congressional statutes in the interest of national security -- has attacked Kagan for not being deferential enough to presidential power.

It's important to describe what Kagan's article was actually about to counter Watson's caricature. After serving in the Clinton administration, Kagan wrote an article defending former President Clinton's practice of writing memoranda directing the heads of federal executive branch cabinet departments and other agencies to take certain actions, even when Congress had given the power to act to the agency heads rather than the president.

Kagan argued that -- unless Congress explicitly took away a president's power to act (as it did in creating the mechanism for appointing independent counsels, for instance) -- the president retained the power to direct the executive branch of the federal government. This was so, Kagan argued, because the president is the head of the executive branch.

Regarding Watson's argument that Kagan wanted presidential power to be used "as a mechanism to achieve progressive goals," Kagan actually stated in the paragraph from which Watson quoted that Republican and Democratic presidents use their power for different goals and could be used to "thwart regulators intent on regulating no matter what the cost." From Kagan's article:

The resulting policy orientation diverged substantially from that of the Reagan and Bush years, disproving the assumption some scholars have made, primarily on the basis of that earlier experience, that presidential supervision of administration inherently cuts in a deregulatory direction. Where once presidential supervision had worked to dilute or delay regulatory initiatives, it served in the Clinton years as part of a distinctly activist and pro-regulatory governing agenda. Where once presidential supervision had tended to favor politically conservative positions, it generally operated during the Clinton Presidency as a mechanism to achieve progressive goals. Or expressed in the terms most sympathetic to all these Presidents (and therefore most contestable), if Reagan and Bush showed that presidential supervision could thwart regulators intent on regulating no matter what the cost, Clinton showed that presidential supervision could jolt into action bureaucrats suffering from bureaucratic inertia in the face of unmet needs and challenges.

Regarding Watson's suggestion that Kagan wanted to thwart the "American system of divided powers and checks and balances," Kagan specifically stated that Congress has the power to limit presidential power over heads of agencies and that, if Congress does so, "the president must respect the limits" put on him or her. From Kagan's article:

President Clinton's assertion of directive authority over administration, more than President Reagan's assertion of a general supervisory authority, raises serious constitutional questions. In a nutshell, for now, the objection goes as follows. Basic separation of powers doctrine maintains that Congress must authorize presidential exercises of essentially lawmaking functions. In directing agency officials as to the use of their delegated discretion, the President engages in such functions, but without the requisite congressional authority. Congress indeed has delegated discretionary power, but only to specified executive branch officials; by assuming responsibility for this power, the President thus exceeds the appropriate bounds of his office. This argument underlies the conventional, though never adjudicated, view that the President lacks directive authority over administrative officials. I accept here the rudiments of the constitutional argument; more specifically, unlike the unitarians, I acknowledge that Congress generally may grant discretion to agency officials alone and that when Congress has done so, the President must respect the limits of this delegation. My argument in defense of Clinton's practices concerns the statutory predicate underlying the conventional view. I suggest, that is, that most statutes granting discretion to executive branch--but not independent--agency officials should be read as leaving ultimate decisionmaking authority in the hands of the President. This rule of statutory construction appropriately derives from an effort to determine congressional intent as well as, given some uncertainty in doing so, an effort to promote good lawmaking practices.

Yoo actually attacked Kagan for her acknowledgment that "Congress generally may grant discretion to agency officials alone," saying that Kagan was not sufficiently deferential to presidential power: From Yoo's May 25 New York Times op-ed:

In her law review article, Ms. Kagan also lauded Supreme Court holdings that Congress can prohibit presidents from firing subordinate officers, which effectively prevents the president from giving orders. This would place the executive agencies under the political thumb of the legislative branch. "I acknowledge that Congress generally may grant discretion to agency officials alone," Ms. Kagan wrote, and "the president must respect the limits of this delegation."

Under this approach, Congress could free the Justice Department, the Defense Department and any other agency created by Congress from presidential control. To be fair, Ms. Kagan thinks this would be a bad idea (she praised President Clinton's centralization of authority in the White House because it fostered "accountability" and "effectiveness"). But she argued that the Constitution gives the president no power to prevent Congress from doing so.

This is simply wrong. Article II of the Constitution vests in the president alone "the executive power" of the United States. As Justice Antonin Scalia wrote in his dissent from the court's 1988 decision upholding the constitutionality of the Office of the Independent Counsel, "this does not mean some of the executive power, but all of the executive power." (His argument was proved prescient in 1999 when Congress let the law authorizing the independent counsel lapse.)

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