Kagan: A Friend to Executive Power


Elena Kagan has been selected by President Obama to be Justice Stevens’ successor. As is to be expected from a decision by an exceptionally liberal President, conservatives and Republicans are raising their eyebrows and the pundits are asking the usual questions.  The questions under scrutiny, naturally, are her qualifications, her breadth of experience on the bench, as well as speculations as to her judicial temperament. I submit to you that, as usual with the Obama administration, not all is as it seems.

It is hardly a controversial observation to point out that much of the Obama Administration’s progressive agenda is being carried out through the administrative apparatus that has been in place for some time.  This has included, but certainly not limited to, using the IRS as an enforcer of healthcare reform, increased regulatory power of health insurance to the Department of Health and Human Services, new regulations for Wall Street (and Main Street), as well as new EPA regulations on carbon dioxide.  While there has been opposition and public scrutiny on these maneuvers, the challenge to this agenda has not (and will not) only originate from the political arena, but also from the courts. With new FCC regulations on the internet and potential cap and trade legislation around the corner, Elena Kagan will be an incredible ally for the Obama Administration on the highest court in the United States.

Kagan has argued, as early as 2001, for increased presidential authority in the decision making process of administrative regulation (see: Elena Kagan, “Presidential Administration” 114 HVLR 2245, June, 2001.)  The standard argument against such an expansion is that the separation of powers doctrine maintains that Congress must authorize presidential exercises of power, the function of which is essentially lawmaking.  Congress, of course, also directs agency officials as to the appropriate scope of their discretionary powers.  To assume the responsibility of that role, the President has overstepped his bounds.  Kagan begins on the ground that “this conventional view” has not been adjudicated (114 HVLR at 2320.)  Meaning, the court has not explicitly decided on this, so her argument may persuade a court to make her view law.

For Kagan it is an issue of strict statutory construction, legislative intent and the presidential removal power.  For her, there are two choices — one based on the intent of the framers and one that advances “policy considerations relating to the desirability of presidential control” and direction (114 HVLR at 2252.)  It is a crafty argument.  She argues that precedent has suggested, that an official can be replaced for someone more compliant. Because of this and unless Congress explicitly states its intent to insulate an administrative official from the President, it can be inferred that the agency official’s discretion is subject to the control of the President (114 HVLR 2327.)  If her interpretation of presidential power is accepted, the onus will be on Congress to limit presidential diktat.

Regardless as to the strengths and weaknesses of her analysis, it is clear where she stands on the relationship between the President and the monolithic regulatory apparatus of the United States.  We may not know whether she will be an intellectual force on the bench, or whether she can unify and persuade the other judges to form a liberal majority on the Court.  But we do know, and hopefully the Republicans will discover through the confirmation process, that Elena Kagan is very important to the President. Her stance on executive power will not only be an asset for Obama’s short-term political agenda but, if she is confirmed, she will be important for future progressive reform. 

For a synopsis of Elena Kagan’s life and career, including her contribution to the Obama presidential campaign, visit Discover the Networks

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Matthew Austin is recent graduate of Albany Law School where he served as president of the student chapter of the Federalist Society for Law and Public Policy Studies. Concurrently, he served on the board of directors for the Albany Lawyer’s Chapter of the Federalist Society. He resides in Albany, NY.