Posted on 05/01/2009 8:10:39 AM PDT by bd476
Meet the Front-Runner To Succeed Souter
By David Frum
Friday, May 01, 2009 4:22 AM
The most mentioned candidate to replace David Souter is Elena Kagan, former dean of the Harvard Law School, now President Obama's Solicitor General. Kagan's best-known piece of legal scholarship is an article in the 2001 Harvard Law Review arguing in favor of stronger direct presidential control over administrative agencies. It makes for ominous reading at a time when Democrats hold big majorities in the elected branches of government.
Let's put it this way: If Kagan does reach the court, liberals everywhere are going to have to eat their words about the wickedness of those conservative champions of the "unitary executive" theory: "When we said we were opposed to the unitary executive, that was because we favored a super unitary executive!"
Some extracts from Kagan's article, 114 Harv. L. Rev. 2245:
[P]residential control of administration, in critical respects, expanded dramatically during the Clinton years, making the regulatory activity of the executive branch agencies more and more an extension of the President's own policy and political agenda.
Faced for most of his time in office with a hostile Congress but eager to show progress on domestic issues, Clinton and his White House staff turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals. Whether the subject was health care, welfare reform, tobacco, or guns, a self-conscious and central object of the White House was to devise, direct, and/or finally announce administrative actions - regulations, guidance, enforcement strategies, and reports - to showcase and advance presidential policies.
**
Accepted constitutional doctrine holds that Congress possesses broad, although not unlimited, power to structure the relationship between the President and the administration, even to the extent of creating independent agencies, whose heads have substantial protection from presidential removal.
The conventional view further posits, although no court has ever decided the matter, that by virtue of this power, Congress can insulate discretionary decisions of even removable (that is, executive branch) officials from presidential dictation - and, indeed, that Congress has done so whenever (as is usual) it has delegated power not to the President, but to a specified agency official. Clinton's use of what I call directive authority - his commands to executive branch officials to take specified actions within their statutorily delegated discretion - ill-comports with this view. The unitarians would defend the practice simply by insisting, against the weight of precedent, that the Constitution provides the President with plenary authority over administration, so that Congress can no more interfere with the President's directive authority than with his removal power.
I too defend the practice, but not on this basis. I accept Congress's broad power to insulate administrative activity from the President, but argue here that Congress has left more power in presidential hands than generally is recognized. More particularly, I argue that a statutory delegation to an executive agency official - although not to an independent agency head - usually should be read as allowing the President to assert directive authority, as Clinton did, over the exercise of the delegated discretion.
**
[President] Clinton ...developed a set of practices that enhanced his ability to influence or even dictate the content of administrative initiatives. He exercised this power with respect to a wide variety of agency action - rulemakings, more informal means of policymaking, and even certain enforcement activities. ... In so doing, Clinton also showed that presidential supervision of administration could operate, contrary to much opinion, to trigger, not just react to, agency action and to drive this action in a regulatory, not deregulatory, direction.
**
Presidents before Reagan... usually had shunned direct [Executive] involvement in any administrative rulemaking, and even Reagan, in creating a mechanism for this involvement, had disclaimed any authority ultimately to displace the judgment of agency officials. The Clinton order, by contrast, implied precisely this power - presidential directive authority over discretionary decisions assigned by Congress to specified executive branch officials (other than the President). Under this view, the President would not need to resort to his power of removal over executive branch heads to ensure a certain rulemaking result: that result would - or at least should - follow by virtue of a presidential (displacing a secretarial) order.
**
If presidential administration - in the form, to the extent, and with the limits I have noted - represents a salutary development in administrative process, then courts should attempt, through their articulation of administrative law, to recognize and promote this kind of control over agency policymaking.
Kagan, huh? What’s her melanin count?
Meet the new putz. Same as the old putz.
In this brave new Amerika, we no longer care about qualifications, or competence. What matters is how many groups does she represent?
I see she was at Harvard and is a lawyer.
What credentials does she have to sit on the highest court in the land? Because if I understand correctly, her credentials are about as good as Harriet Meyers.
Ugh . . . guilty!!
Very good!!!!
She reminds me of Lydia Bastyanich.
This troll typifies that statement.
Is she openly gay? When I heard about the vacancy, my first comment to my law partner was, “He’ll appoint someone openly gay, instead of a closet gay.”
Just googled. She is an “out” lesbian.
Putting a deviant in that position of power — to dictate to the rest of us — is a crime.
Please expand. I don’t follow your thrust...
Redrum.
I tend to drift from time to time.
I’ll wager she has more chest hair than Souter.
A dark horse will be hellry rotten xlinton - her reward for stepping aside.
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