Kagan's Views On The "Unitary Executive" Theory

When discussing Solicitor General, and probable SCOTUS nominee, Elena Kagan's views on the unitary executive theory, it is important to understand what is meant by the theory of the unitary Executive Branch. I made this distinction during the Alito hearings of 2006. The Bush Administration took what I believe is a respectable theory of a unitary Executive Branch and distorted it to support their lawlessness:

In a speech to the Federalist Society in 2001, Alito said:

When I was in OLC [] . . ., we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President. [. . .]

What does that mean? Here's what it means for Bush:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

The infamous Bybee Memo put it this way:

Any effort by the Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander in Chief authority in the President. . . . Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.

When discussing Kagan's views on the unitary Executive theory, it is critical to note that she is not discussing the outrageous views forwarded by the Bush Administration. Instead, she is arguing for Presidential control of the Executive agencies. Let's now consider her 2001 law review article on the unitary Executive theory:

[A]s this Article will show, presidential 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. In executing this strategy, the White House in large measure set the administrative agenda for key agencies, heavily influencing what they would (or would not) spend time on and what they would (or would not) generate as regulatory product.

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.

In light of the passage of a health bill highly dependent upon strong and activist government regulation and the proposal of a financial reform that inherently will depend on strong and activist regulation, Kagan's argument is, in my view, a progressive one. Indeed, I would argue that Kagan's view of a unitary Executive will be essential if the health bill and financial reform are to have any chance of success.

Kagan also provides a strong democratic (small d) policy rationale for supporting this concept of a unitary Executive Branch:

Those considerations also should govern the questions how Congress and the President should act within the legal framework I posit: whether and when Congress should override the interpretive rule, and whether and when the President should exercise the power conferred under this rule in the absence of such congressional action. Policy arguments for presidential control over administration are surprisingly undeveloped in the legal literature, in large part because most of the unitarians, the strongest proponents of presidential power in public law scholarship, believe that all important questions surrounding this subject are settled by resort to originalist inquiry.

My analysis focuses on the values of accountability and effectiveness--the principal values that all models of administration must attempt to further. I aver that in comparison with other forms of control, the new presidentialization of administration renders the bureaucratic sphere more transparent and responsive to the public, while also better promoting important kinds of regulatory competence and dynamism. I make these claims against the backdrop of notable features of contemporary American government, including the emergent relationship between the President and public,the rise of divided government, and the increased ossification of federal bureaucracies.

I also consider objections to a system of presidential administration and note appropriate limitations on it.

(Emphasis supplied.) A simplistic attack on Kagan will simply invoke the now poisoned phrase "unitary Executive" and invoke fears of the lawlessness of the Bush Administration. But a fair reading of Kagan's argument will recognize the essentially progressive argument, both in terms of policy and judicial interpretation, which underly the theory forwarded by Kagan. Indeed, a fair reading of Kagan's views on this matter should, in my estimation, buttress her progressive bona fides, not undermine them.

That said, we must, as Kagan also does, recognize the risk of an Executive Branch run amok. The Bush Administration surely provides the cautionary tale. Because of this, it is important to consider what limitations Kagan sees in the unitary Executive theory:

I do not espouse the unitarian position in this Article, instead taking the Supreme Court's removal cases, and all that follows from them, as a given. I adopt this stance for two reasons. First, although I am highly sympathetic to the view that the President should have broad control over administrative activity, I believe, for reasons I can only sketch here, that the unitarians have failed to establish their claim for plenary control as a matter of constitutional mandate. The original meaning of Article II is insufficiently precise and, in this area of staggering change, also insufficiently relevant to support the unitarian position. And the constitutional values sometimes offered in defense of this claim are too diffuse, too diverse, and for these reasons, too easily manipulable to justify removing from the democratic process all decisions about the relationship between the President and administration--especially given that this result would reverse decades' worth of established law and invalidate the defining features of numerous and entrenched institutions of government.

Second and equally important, the cases sustaining restrictions on the President's removal authority, whether or not justified, are almost certain to remain the law (at least in broad terms, if not in specifics); as a result, any serious attempt to engage the actual practice of presidential-agency relations must incorporate these holdings and their broader implications as part of its framework.

But my acceptance of congressional authority in this area does not require the conclusion, assumed on the conventional view, that the President lacks all power to direct administrative officials as to the exercise of their delegated discretion. That Congress could bar the President from directing discretionary action does not mean that Congress has done so; whether it has is a matter of statutory construction. If Congress, in a particular statute, has stated its intent with respect to presidential involvement, then that is the end of the matter. But if Congress, as it usually does, simply has assigned discretionary authority to an agency official, without in any way commenting on the President's role in the delegation, then an interpretive question arises. One way to read a statute of this kind is to assume that the delegation runs to the agency official specified and to that official alone. But a second way to read such a statute is to assume that the delegation runs to the agency official specified, rather than to any other agency official, but still subject to the ultimate control of the President. The lawfulness of a President's use of directive power depends on the choice between these two readings.

(Emphasis supplied.) What I think Kagan is arguing in essence is that it is within the Congress' power to limit Presidential control of Executive agency administration of laws duly passed by the Congress. While she appears to believe that it is not good policy, she does not at all question Congressional power to do so. This is, I submit, not only correct as a matter of law, it is also correct as a question of policy. And it is, in essence, a progressive position. Kagan's argument is for democratic (small d) accountability:

All models of administration must address two core issues: how to make administration accountable to the public and how to make administration efficient or otherwise effective. [. . .]

1. Accountability.--Presidential administration promotes accountability in two principal and related ways. First, presidential leadership enhances transparency, enabling the public to comprehend more accurately the sources and nature of bureaucratic power. Second, presidential leadership establishes an electoral link between the public and the bureaucracy, increasing the latter's responsiveness to the former. Modern attributes of the relationship between the President and the public make these claims stronger than ever before. A strong presidential role, to be sure, does not ensure strong accountability. The extent to which a system of presidential administration promotes responsiveness and transparency depends in large part on the form it takes and the methods it uses; and any system will depart from the ideal on all too-frequent occasions. But presidential control of administration at the least possesses advantages over any alternative control device in advancing these core democratic values.

Often, we are displeased with the results of the democratic process. Certainly the Bush Administration must be considered a nadir of the democratic process in terms of results. But, as the old saying goes, elections have consequences. And no election provides a better opportunity for consequences than the election of the President. No other election holds the nation's attention as does a Presidential election. And indeed, I would argue no other election provides the electorate with, at least in theory, a clearer choice on the regulatory state.

In short, I would argue that a reading of Kagan's law review article should give progressive confidence in Kagan's bona fides as a progressive jurist, much in the mold of what one would expect from a modern day Democrat, raised on the virtues of the New Deal.

I believe a fair reading of Kagan's views on this issue militate strongly in favor of her garnering progressive support.

Speaking for me only

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    I think this is right (none / 0) (#1)
    by andgarden on Wed Apr 14, 2010 at 11:11:17 AM EST
    One problem that arises in practice is when a piece of legislation (say, the ACA) says something like "the Secretary shall." Some people think that takes a decision (or ability to direct policy) entirely out of the President's hands (except for the ability to fire). But that's not healthy in terms of democratic accountability.

    It is a long article (none / 0) (#2)
    by Big Tent Democrat on Wed Apr 14, 2010 at 11:26:22 AM EST
    by Kagan, but if people actually read it, I believe they would gain confidence that she is Center Left.

    Next issue - preventive detention.


    Yeah (none / 0) (#3)
    by andgarden on Wed Apr 14, 2010 at 11:27:41 AM EST
    Which, in light of the date the article (none / 0) (#6)
    by oculus on Wed Apr 14, 2010 at 12:00:50 PM EST
    was published, and her subsequent testimony during her confirmation hrgs., I sincerely hope you will address.

    Next on the list (none / 0) (#8)
    by Big Tent Democrat on Wed Apr 14, 2010 at 12:05:09 PM EST
    What will be funny is if Obama chooses Garland or someone else besides Kagan, though I really do not see that happening.

    As you know, Greenwald disses Kagan (none / 0) (#10)
    by oculus on Wed Apr 14, 2010 at 12:06:57 PM EST
    for not speaking up about Bush/Cheney/Yoo civil liberties decisions and practice.

    Fair criticism imo (none / 0) (#12)
    by Big Tent Democrat on Wed Apr 14, 2010 at 12:09:05 PM EST
    Frankly, I imagine she had this situation in my mind when she chose to hold her tongue - being a SCOTUS nominee.

    Although I gather her area of expertise (none / 0) (#13)
    by oculus on Wed Apr 14, 2010 at 12:11:25 PM EST
    may be federal administrative law.

    Boy, I'm way behind on this subject (none / 0) (#4)
    by gyrfalcon on Wed Apr 14, 2010 at 11:55:58 AM EST
    It never occurred to me that when Congress says "The secretary shall," it didn't mean, in essence, "The president shall see to it that the secretary shall," especially since except in the rarest of cases, the president has signed the legislation.

    It also never occurred to me that the president wasn't in charge of the executive branch.  If the president can hire and fire, by definition and in practical effect, he/she can direct the actions of that person in carrying out whatever "the secretary shall" legislation Congress passes.  How could it possibly be otherwise?

    I'm really struggling here.  What's the alternative theory to the "unitary executive" (Kagan's outline, not the Bushian wild overreach)?

    I can't get my head around why somebody should have to write a law review article like this.  The basic principles sound identical to what I was taught in my 8th grade civics class.

    The president runs the executive branch, subject to congressional oversight.  Seriously, I'm floundering.  What's the alternative and who would be pushing for it?  Does this other theory have a name?


    Ask those who are making a fuss about it (none / 0) (#5)
    by Big Tent Democrat on Wed Apr 14, 2010 at 11:58:55 AM EST
    But to be fair, Kagan is arguing for more deference to the President on administrative matters when the Congress has not spoken on the issue.

    Is that what she means by "removal"? (none / 0) (#7)
    by oculus on Wed Apr 14, 2010 at 12:02:01 PM EST
    No (none / 0) (#9)
    by Big Tent Democrat on Wed Apr 14, 2010 at 12:06:01 PM EST
    She is just discussing the removal of officers jurisprudence to demonstrate the existing views of Presidential power in the administrative realm.

    It is a law review article after all.


    Not going there. "Inactive." (none / 0) (#11)
    by oculus on Wed Apr 14, 2010 at 12:07:45 PM EST
    That's what I don't get (none / 0) (#16)
    by gyrfalcon on Wed Apr 14, 2010 at 02:10:22 PM EST
    why that should be even in question.  Who else other than the president should have authority on administrative matters when Congress hasn't spoken on the issue?


    Is there some sort of argument that cabinet secretaries, or department heads, or who, should have independence from the head of the executive branch?   Who is supposed to be making these decisions on how to carry out congressional legislation if it isn't the president?

    (I get that folks on the left are misconstruing Kagan to be arguing for something closer to the Bush imperial ideas.  That's not what puzzles me.)


    yea (none / 0) (#14)
    by CST on Wed Apr 14, 2010 at 12:50:47 PM EST
    for those of us who aren't experts in legalese - this article does seem to have a "duh" quality to it.  Not really seeing what the fuss is about here.  

    Although I wouldn't be surprised to see the Jeff Sessions's of the world harping on this - since he did say he would focus on HCR during the confirmation hearings.  And this gets right to the heart of the good stuff in HCR.  So of course it must be opposed at all costs by the r.w.


    Very complicated (none / 0) (#15)
    by andgarden on Wed Apr 14, 2010 at 01:42:12 PM EST
    There are books written about it. As a matter of doctrine, practice, and fact, it is not entirely clear that the administrative agencies can (or should) sit firmly in the executive branch.

    Yes (none / 0) (#17)
    by jbindc on Wed Apr 14, 2010 at 03:55:58 PM EST
    Especially because of the independent agencies and the ones who report under the judicial and legislative branches and not through the executive branch

    Yup (none / 0) (#18)
    by andgarden on Wed Apr 14, 2010 at 04:30:11 PM EST
    Morrison v. Olson.

    With all due respect (none / 0) (#19)
    by gyrfalcon on Wed Apr 14, 2010 at 06:29:50 PM EST
    jbindc, Duh.

    Obviously, agencies that aren't under the executive branch aren't under the excutive branch.

    I'm trying to understand how or why and who would argue on what grounds that agencies that are in the executive branch shouldn't be directed by, um, the chief executive, and who they think should direct them if not the chief executive.


    Because (none / 0) (#20)
    by jbindc on Thu Apr 15, 2010 at 07:13:37 AM EST
    Some agencies under the executive branch are independent and not subject to the immediate whims of the president.

    Think FEC


    Also duh (none / 0) (#21)
    by gyrfalcon on Thu Apr 15, 2010 at 08:16:10 AM EST
    Those agencies are not under any kind of dispute that I'm aware of.  But the vast majority of the executive branch is not independent.