Research Briefing

IN KAGAN’S VIEW, IT’S THE COURT NOT CONGRESS THAT SHOULD REVIEW OBAMA'S AGENDA

Kagan Argues That Because Of A “Lack Of Continuity In Congressional Preferences” And “Threat Of Congressional Lawlessness,” The President Should Have Strong “Control Over” Administrative Actions. “And the Congress existing at the time of the order may have no desire to enforce the enacting Congress's determination of the appropriate scope of administrative discretion. But second, and now placing the threat in some perspective, this very lack of continuity in congressional preferences suggests that in the absence of strong presidential control over administration, a similar, even if not fully equivalent, threat of congressional lawlessness might arise to fill the resulting vacuum. For any given Congress (or more precisely, its committees and subcommittees) also may be disposed to press agencies to engage in conduct unauthorized by prior statute. The threat of lawlessness thus cannot exclusively be associated with presidential control.” (Elena Kagan, “Presidential Administration,” 114 Harvard Law Review 2245, 06/01)

Kagan Has Stated That Congress “Possesses Neither The Tools Nor The Incentives Effectively To Counter Wrongful Assertions Of Presidential Authority.” “In two different respects, the answer to this threat of presidential lawlessness cannot lie in the hands of the current Congress. First, and apparently compounding the threat, Congress possesses neither the tools nor the incentives effectively to counter wrongful assertions of presidential authority. Congress cannot easily obtain the two-thirds vote in each house necessary (given the President's veto power) to overturn a presidential order.” (Elena Kagan, “Presidential Administration,” 114 Harvard Law Review 2245, 06/01)

Kagan Argued That Congress Should First Wait For The Judiciary To Act Before Passing Laws Regarding Detainees. “The Graham Amendment would attempt to stop both of these cases from proceeding and would unwisely interrupt judicial processes in midcourse. Respect for the constitutional principle of separation of powers should counsel against such legislative interference in the ongoing work of the Supreme Court and independent judges.” (Elena Kagan Letter, “Joint Letter to Sen. Patrick Leahy, Opposing The Graham Amendment To The DoD Authorization Bill Insofar As It Would Have Stripped The Federal Courts Of Jurisdiction To Hear Habeas Petitions Brought By Detainees At Guantanamo,” Senate Judiciary Committee, 11/14/05)

Kagan Believes That Regardless Of “Conceptual Doubts” Court Should Use Legislative Intent To Divine Congress’ Motives Instead Of Relying On The Plain Meaning. “Moreover, conceptual doubts about legislative intent are irrelevant to my project, which is one of understanding the root sources of current doctrine. The Court has not allowed such doubts to prevent it from inquiring into motive--even into "sole," "dominant," or "essential" motive--in a variety of circumstances….Even if there is no such thing as legislative intent, the Court often acts as if there is. So long as this is true, objections to the concept of legislative intent do no damage to the claim that some aspect of doctrine, explicitly or implicitly, attempts to discover the intent of the legislature.” (Elena Kagan, “Private Speech, Public Purpose: The Role Of Governmental Motive In First Amendment Doctrine,” 63 University Of Chicago Law Review 413, Spring 1996)

• Kagan Would Go So Far As To Have Court Divine Congress’ Intent By “Reckoning How Many Legislators The Impermissible Consideration Swayed And Comparing That Number To Margin Of Victory.” “True, the Court need not determine the collective sense of a decision-making body or even a single legislator's full state of mind.  But the Court must perform a task that might be as hard: determining whether a particular factor played a but-for role in a decision-making process. This task, in its most simplified form, involves reckoning how many legislators the impermissible consideration swayed and comparing that number to the margin of victory.” (Elena Kagan, “Private Speech, Public Purpose: The Role Of Governmental Motive In First Amendment Doctrine,” 63 University Of Chicago Law Review 413, Spring 1996)