Elena Kagan is a progressive on executive power.

The law, lawyers, and the court.
April 16 2010 2:29 PM

Elena Kagan Is a Progressive on Executive Power

Look closely at what the Supreme Court shortlister has said about presidential authority.

Elena Kagan. Click image to expand.
Elena Kagan

The public list of 10 lawyers apparently under consideration to be the next Supreme Court nominee has produced a good bit of comparative analysis of their assumed political leanings. Much of the commentary seems to me to exaggerate the differences among this group. A case in point is the critique of Solicitor General Elena Kagan's views on executive power. Glenn Greenwald, whose writing I generally admire, has speculated, for example, that Kagan would move the court "closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law." He also believes that Kagan was silent in the face of presidential abuses of power by the Bush administration.

That is all way off the mark. Let's take Greenwald's second point first. As dean of Harvard Law School, Kagan sharply and publicly criticized the excessive claims of executive authority put forth by Bush administration lawyers such as John Yoo. In an address at her school's graduation ceremony in 2007, she forthrightly condemned "the expedient and unsupported legal opinions" used by Yoo and other lawyers to justify violations of federal laws regulating wiretapping and interrogation. Kagan minced no words in her critique of Bush administration lawyers who "failed to respect the law" or who manipulated, bent, or evaded the law "to seek short-term advantage." She also held up as a model to the graduating students and their families and friends the actions of independent counsel Archibald Cox in standing up to President Nixon. And she praised other lawyers such as Jack Goldsmith, who insisted that President Bush cease the secret wiretapping program because they believed it unlawful.

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These views do not come as a surprise if one reads Kagan's 2001 Harvard Law Review article "Presidential Administration." She does not endorse anything remotely like the Bush-Cheney view of broad presidential power to evade laws passed by Congress. (The article was written before Sept. 11 prompted articulation of the Bush-Cheney doctrine.) Greenwald correctly acknowledges that "what Kagan was defending back then in [2001] is light years away from what Bush/Cheney ended up doing, and her defense of Clinton's theories of administrative power was nuanced, complex and explicitly cognizant of the Constitutional issue they might raise." He nonetheless sees her positions on presidential power as leaning in a more conservative direction that the justice she would replace, John Paul Stevens.

I think that's wrong. Kagan's views on the president's power to direct the executive branch are in fact fully consistent with the positions taken by Justice Stevens. Her legal views are based in significant part on two of Stevens' most important opinions for the court, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. and Hampton v. Mow Sun Wong, decisions about the authority of federal agencies that Kagan rightly reads as encouraging presidential leadership under statutes that give discretion to the executive branch.

As a matter of policy, moreover, Kagan writes that she sees presidential supervision of federal agencies "as a mechanism to achieve progressive goals" in areas such as environmental protection. She believes that presidential supervision can "jolt into action bureaucrats suffering from bureaucratic inertia in the face of unmet needs and challenges." She believes that it is important to render the bureaucratic sphere "more transparent and responsive to the public, while also better promoting important kinds of regulatory competence and dynamism." This is a view of presidential power that traces its lineage to Theodore Roosevelt and FDR.

The Bush-Cheney view of executive power was wrong not because it asserted that the president could direct administrative agencies to achieve policy goals. It was wrong because it allowed for the president to ignore decisions made by Congress and assert unilateral power to violate duly enacted laws. That is a view of presidential power that Kagan expressly rejects. She believes that the president has to comply with the law, writing that, "If Congress, in a particular statute, has stated its intent with respect to presidential involvement, then that is the end of the matter."

Presidential leadership of the executive branch is a progressive doctrine, as its lineage through FDR shows. What should concern progressives—and concern them greatly—is the assertion of presidential power to break laws Congress has passed. Kagan is firmly on the other side—the side of rule of law that values limiting presidential abuses. She wrote in her article, "The President has no greater warrant than an agency official to exceed the limits of statutory authority."

The president faces a difficult choice in making a nomination for Justice Stevens' seat, but it is a difficulty born of an embarrassment of riches. I don't argue for or against any choice. I do think it is important, however, to set the record straight on Elena Kagan's views of presidential power: Her views are fundamentally progressive.

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Walter Dellinger was head of the Office of Legal Counsel from 1993 to 1996.

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