The Regulatory State, The Unitary Executive And Civil Libertarians
Walter Dellinger's piece on Elena Kagan (it reaches similar conclusions to my own piece) raises important questions for progressives regarding a desire for a strong regulatory state while at the same time fearing a strong President. Dellinger writes:
Kagan's 2001 Harvard Law Review article "Presidential Administration" [. . .] does not endorse anything remotely like the Bush-Cheney view of broad presidential power to evade laws passed by Congress. [. . .] 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. [. . .]
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. [. . . ] 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."
(Emphasis supplied.) This was the point I made in my post earlier this week. But Dellinger continues to an equally significant point:
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."
(Emphasis supplied.)In my piece, I wrote:
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.
Celebrating the SEC's enforcement action against Goldman Sachs, Chris Bowers wrote:
Two of the main schools of thought on financial reform are those who seek reform through new regulations, and those who seek reform through criminal prosecution. If you will forgive me for sounding like David Brooks for a moment, in this article I will refer to them as "the New Regulators" versus "the Punishers."
The New Regulators do not believe reform is possible without changing existing law surrounding the finance industry. The Punishers do not believe reform is possible without at least some of the people responsible for the crisis going to jail. This is largely a conflict of emphasis, between those who those who view the regulations, and those who view the regulators, as the main problem.
While Chris' explanation of the schools of thought is frankly wrong (it is more a question of whether controlling the size of financial institutions (the "too big to fail" problem) is necessary to properly structure the financial markets versus controlling the activities of financial institutions. Krugman v. Volcker is where this debate is at. But Chris does get to the point I want to talk about - how can we have faith in regulation and does Presidential control over the regulatory agencies breed confidence and accountability?
Kagan, Dellinger and I all believe it does. And we believe that this is the traditional progressive view of the question.
This is why I read with some amusement Matt Yglesias's tipping of Dellinger's article as "Walter Dellinger says Elena Kagan is too a civil libertarian." Well, yes, but Dellinger's more important point is that Kagan is a progressive on the question of Presidential power over the Executive Branch.
This is a question quite apart from the issue of whether Kagan is a civil libertarian. Indeed, all Dellinger says about that issue is:
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."
(Emphasis supplied.) Insisting that a President must abide by laws duly enacted to Congress should not be viewed as being a "civil libertarian." Only in the warped view of the Bush Administration could it be so. To discover whether Kagan is a civil libertarian (I strongly suspect she is in the conventional sense; the questions regarding the War on Terror are worthy of a series of posts and beyond the purview of this one), it seems clear to me that direct questions will have to be put to her by the Senate.
The real point of Dellinger's article in my view is to first, set the record straight on what Kagan means and thinks about the "unitary Executive" theory, and second, to explain why those views are progressive.
Yglesias should understand this point. I thought it was the point he was making when he challenged Scott Lemiuex's position that liberal means ONLY civil libertarian. It is why I wrote my post When Did Statist Become A Dirty Word?.
In fact, a stray sentence from an Yglesias post on medical loss ratios makes the point in the best way:
[HHS Secretary] Kathleen Sebelius is working on this issue but I think we can expect a lot of back-and-forth between regulators and insurers over this kind of thing for the next 10-15 years.
Who gets to direct Kathleen Sebelius (and her successors) on how she should "work on this issue?" It is Kagan's view, and as Dellinger and I point out, the progressive view, that the President should, to the degree that the Congress has provided such discretion. I can't tell you whether Elena Kagan is a civil libertarian, but I can say her writing on the unitary Executive are progressive.
Speaking for me only
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