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:
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