A lot of folks around the progressive blogs have criticized Elena Kagan (wrongly, in my opinion) on two grounds.
- That Kagan has actively avoided having any kind of record. I call this the blank slate theory.
- That Kagan is not sufficiently progressive. Proponents of this view (usually with no cognitive dissonance over the blank slate criticism they simultaneously hold) point to Kagan's Presidential Administration Paper as a sign that she is not in line with progressive views on Presidential control of administrative agencies. Some go so far as to lable her a proponent of the unitary executive theory "popularized" by the Bush and Cheney administration.
A close reading of record and her seminal paper, Presidential Administration dispells both of these attacks with ease.
- Elena Kagan: Hardly a Blank Slate
As soon as you open up the PDF on Presidential Administration and read through the first couple of paragraphs, you'll quickly become skeptical of those who say that she has no record. The paper, which covers the President's power to control administrative agencies (more on that later) is 154 pages in total. In it, she articulates a clear and rather innovative framework for analyzing the President's ability to control adminstrative agencies (perhaps one of the biggest hot button legal issues out there today!).
But that's just one paper you might be saying. You might also have done a little research and noted that she has only published 7 pieces: 4 major articles in which she co-wrote or authored solo, and 3 more minor pieces that she authored. 7 pieces may not sound like a lot. But conservative law professor Eugene Volokh makes an excellent point:
Let me begin with some objective factors, rather than my own evaluation of Kagan’s scholarship. As this excellent SCOTUSblog post chronicles, Kagan was a working scholar from 1991–95, and then 1999–2003. Between those years, she worked in the Clinton Administration; after those years, she was dean at Harvard Law School, a position that these days leaves its holder with very little time to do serious scholarship. In those eight years, she wrote or cowrote four major articles (SNIP) She also wrote three shorter but still substantial pieces.
Quantitatively, this is quite good output for eight years as a working scholar. It looks a lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor General — but for the reasons I mentioned above, that’s not the right way to look at it.
To those not familiar, the style of legal scholarship is generally to argue a position on how the law should be interpreted, or on how the law has been interpreted, or on the consequences of a present interpretation of the law. In short, in each and every one of these 7 substnatial pieces, Kagan has articulated a view about the law. That hardly makes one a blank slate.
Moreover these were not little noticed papers. As Volokh further notes:
Moreover, two of her articles have been judged to be quite important by her colleagues. Presidential Administration has been cited 305 times in law journal articles (according to a search of Westlaw’s JLR database) — an extraordinarily high number of citations for any article, especially one that is less than 10 years old. In fact, a HeinOnline list of all articles with more than 100 citations, run in August 2009, reports that her article was at the time the 6th most-cited law review article of all the articles published since 2000. Many legal scholars, even ones working in the relatively high-citation fields of constitutional law and administrative law, have never and will never write an article that is so much cited.
Chevron’s Nondelegation Doctrine has been cited 75 times, a very high number for an article’s first 10 years; I suspect that only a tiny fraction of one percent of all law review articles are cited at such a pace. Private Speech, Public Purpose has been cited 129 times, likewise a very high number. The Changing Faces of First Amendment Neutrality has been cited only 36 times, but that probably stems in large part from the fact that Supreme Court Review articles from that era are not on Westlaw or Lexis (ridiculous, especially for a faculty-edited journal with the Supreme Court Review’s excellent reputation, and likely stemming from a short-sighted non-licensing decision by the University of Chicago Press).
So not only has she published a fair amount of legal writing, but that writing has been, to say the least, EXTREMELY INFLUENTIAL. As a law student and someone who wishes to one day be a legal scholar, I'd do almost anything to write something half as influential as Kagan's paper on Presidential Administration.
Even when she was not publishing papers, Kagan was doing important work that illuminates her view of the law, and policy. Kagan, as mentioned above, worked in the Clinton administration. She Clerked for Justice Thurogood Marshall, she has been the solicitor general for the past year and some change, she has a history in democratic politics going back to 1980. She was Dean of Harvard Law School, a highly visible post in the legal community.
To suggest that she has actively concealed her identity is quite odd. It seems to me that this is a person who simply has broad interests and so she did not accumulate much of a paper trail at any one given stop in her career, but when you put it together there is certainly a long record from which to evaluate her on. And it's fairly safe to say that she' is a believer in the Democratic party and it's principles given her level of involvement with Democratic politics for the last twenty plus years.
- Elena Kagan: NOT in Line With Bush/Cheney on Executive Power At ALL! PERIOD!
Perhaps the biggest myth circulating around the blogosphere is that Elena Kagan is somehow a proponent of the unitary executive. This stems from a fundamental misreading of her views as articulated in Presidnetial Administration, her seminal paper on the power of the President to control executive administrative agencies.
What I have trouble grasping is whether those who are making this claim either suffer from a fundamental lack of understanding about the current debate over Presidential authoirty, or whether they are just too lazy to read more than the cliff notes version of Kagan's papers.
Here is Kagan, in the introduction to her paper, stating her views on Presidential Administration in no uncertain terms:
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. [FN7] 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. [FN8] Clinton's use of what I call directive authority-- his commands to executive branch officials to take specified actions within their *2251 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. [FN9] 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.
To summarize there are 3 camps: the traditional view, the unitarian, and Kagan's camp.
The Traditional View:
Congress has the power to structure the relationship between the President and administrative agencies. The only role the President has under this view is to fire the heads of excecutive adminstrative agencies, he cannot control the day to day activities. The President has little to no power to control indepedent administrative agencies as he may not remove nor direct their decisions. His only way to influence these agencies is if he is given the power of appointment.
The Unitarian View (BUSH/CHENEY/YOO):
Congress has no ability to structure the relationship between the President and administrative agencies. The President has absolute authority to direct administrative agencies to do whatever he (or she--hopefully soon!) pleases based on his power as President. Just as Congress may not limit the President's ability to remove or fire the heads of administrative agencies, they may not limit his ability to direct their decisions either. Under this view, the President should be able to direct the decisions of administrative agencies (independent or not) and should be able to remove the department heads (independent or not). This view is skeptical of the independent vs. executive distinction and thinks that all administrative agencies should be treated as executive administrative agencies.
Kagan's View:
Congress has the authority to structure the relationship between the President and administrative agencies. But where Congress chooses to delegate power to an executive agency (Like the EPA), rather than an independent agency (Like the National Labor Relations Board), we should interpret that as a delegation of power to the President, and the President should have power to direct the decisions of executive administrative agencies. Kagan implicitly agrees with the traditionalist view that the President may not direct the heads of independent agencies by directing their decisions or by removing them.
Note that both Kagan and the Unitarians believe that the President has the power to direct the decisions of executive administrative agencies. But under Kagan's view, unlike under the Unitarian view, that authority derives from Congress and not the Constitution. So Congress, under Kagan's view, may limit the president's power over a matter by delegating it to an independent agency if it so chooses. Under the Unitary Executive theory, this is not possible because the Constitution vests all of the executive power in the President, and Congress is not allowed to limit that power.
Having cleared up the fact that Kagan is not a supporter of the Unitary Executive theory, there is one other myth to dispel. That her notion of Presidential Administration is somehow anti-progressive. This is simply not accurate.
First of all the practical differences between Kagan's model and the Traditional view are relatively academic. The only difference between the two is that under the Traditional model, the President is limited to removing the heads of executive agencies, where as under Kagan's model, the President can review decisions of administrative agencies and kick them back if he is displeased (in addition to his removal authority). In practice, there is little difference between the two. The president's removal authority gives him a de facto power to direct the administrative agencies, as should be obvious. If you are the head of the EPA under the Traditional view, you are still going to submit to White House review, whether or not the President has the power to review, simply to make sure that you keep your job. In fact it is this very reason that no head of an executive administrative agency has ever (to my knowledge) challenged the ability of the Whitehouse to review their decisions--to do so would mean a certain removal. Kagan's framework essentially transports the traditional view into modern reality.
Second off, if anything, the traditional view is less progressive than Kagan's view. Centralized planning is key to any progressive policy. Kagan's model allows the President to coordinate the various agencies and achieve a progressive agenda. In fact that was the WHOLE POINT of her paper:
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.
Shorter Kagan: A strong, but reasonably checked President, is A BOON to progressive governance. Prior to Kagan's paper it was thought that centralized presidential power inevitably led to deregulation. The main point of her paper was to disprove that myth and show how increased presidential control over administrative agencies during the Clinton years led to progressive and robust regulatory regimes.
Of course there are valid points to be made as push-back. Centralized authority, as Kagan mentions, has been used during Republican administrations to prevent regulation. But that is more of a political question that should be resolved by elections. The important point is that under Kagan's framework, there is at least the ability to govern more progressively where congress will not enact your agenda. And of course, if congress doesn't like what you are doing, they can remove the authority of the executive administrative agency to regulate in a certain area.
There a host of other things you can take exception to as well--after all the paper is quite long and she is laying out a framework for presidential power--a contentious subject. But let's not dramatize her words to mean the exact opposite of what she is suggesting.
I haven't had a chance to review her first amendment writings, but I assume they are equally as reasonable as this paper is.
CONCLUSION:
Please keep an open mind and read up on Kagan before jumping on to the criticism de jour, because they have been flatly false thus far.
NOTE: I am not a legal expert on administrative law. I am a 2L. Don't take what I say about her opinion as gospel---this diary is merely intended to reflect my relatively informed reading of her papers and career. As always I welcome any corrections to what I just said in the comments.