Research Briefing

Having Proven Herself A Fierce Partisan Defender, Obama Trusts Elena Kagan Will Protect His Agenda From The Bench

FROM THE BENCH, KAGAN CAN HELP OBAMA “ACHIEVE PROGRESSIVE GOALS”

Obama Fears Supreme Court Will Challenge His “Ambitious Agenda Expanding The Reach Of Government.” “As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.” (Peter Baker & Jeff Zeleny, “Obama to Nominate Kagan as Justice,” The New York Times, 5/9/10)

• Obama Has Gone Out Of His Way To “Publicly Criticiz[e] The Court.” “Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Mr. Obama has publicly criticized the court, even during his State of the Union address with justices in the audience.” (Peter Baker & Jeff Zeleny, “Obama to Nominate Kagan as Justice,” The New York Times, 5/9/10)

In Kagan, Obama Sees “A Forceful, Effective Counterweight To Chief Justice John Roberts And Justice Antonin Scalia.” “White House aides also have signaled that Obama believes Kagan could provide a forceful, effective counterweight to Chief Justice John Roberts and Justice Antonin Scalia, and perhaps even be the bridge to bring Justice Anthony Kennedy onto the liberal side in narrow 5-4 decisions.” (Josh Gerstein, “Elena Kagan Strategy: Avoid A Big GOP Fight,” Politico, 5/10/10)

Kagan Argues For Expanded Presidential Power As “A Mechanism To Achieve Progressive Goals.” “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. She believes that presidential supervision can ‘jolt into action bureaucrats suffering from bureaucratic inertia in the face of unmet needs and challenges.’ She believes that it is important to render the bureaucratic sphere ‘more transparent and responsive to the public, while also better promoting important kinds of regulatory competence and dynamism.’ This is a view of presidential power that traces its lineage to Theodore Roosevelt and FDR.” (Walter Dellinger, “Executive Power,” Slate.com, 4/16/10)

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 Believes That Courts Should Take On “Review Of Agency Action, Including Action That The President Orders.” “There is, in any event, a simple, if sometimes imperfect, solution to the problem: judicial review of agency action, including action that the President orders. In an article attacking Clinton's assertions of control over agency action, Peter Strauss argued that a prime danger of this practice inhered in the President's insulation from normal forms of judicial control…..When the challenge is to an action delegated to an agency head but directed by the President, a different situation obtains: then, the President effectively has stepped into the shoes of an agency head, and the review provisions usually applicable to that agency's action should govern.” (Elena Kagan, “Presidential Administration,” 114 Harvard Law Review 2245, 06/01)

AND IN KAGAN’S VIEW, IT’S THE COURT NOT CONGRESS THAT SHOULD CHECK OBAMA

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 Current 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 The Court Divine Congress’ Intent By “Reckoning How Many Legislators The Impermissible Consideration Swayed And Comparing That Number To The 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)

YET WHILE KAGAN IS QUICK TO THE DEFENSE OF OBAMA’S AGENDA,

SHE ATTACKED BUSH POLICIES AS FAILING “TO RESPECT THE LAW”

Kagan Attacked Bush Administration Anti-Terror Efforts, Claiming They “Failed To Respect The Law” In Order “To Seek Short-Term Advantage.” “In an address at her school's graduation ceremony in 2007, she forthrightly condemned ‘the expedient and unsupported legal opinions’ used by Yoo and other lawyers to justify violations of federal laws regulating wiretapping and interrogation. Kagan minced no words in her critique of Bush administration lawyers who ‘failed to respect the law’ or who manipulated, bent, or evaded the law ‘to seek short-term advantage.’”  (Walter Dellinger, “Executive Power,” Slate.com, 4/16/10)

Kagan Condemned Graham Amendment, Which Prevented Non-Citizen Gitmo Detainees From Appealing Convictions In Federal Courts, For “Immunizing The Executive Branch From Review.” “As professors of law who serve as deans of American law schools, we believe that immunizing the executive branch from review of its treatment of persons held at the U.S. Naval Base at Guantanamo strikes at the heart of the idea of the rule of law and establishes a precedent we would not want other nations to emulate…Curiously, the Graham Amendment recognizes the need for judicial review of the determination of enemy combatant status, but then purports to bar judicial review of far more momentous commission rulings regarding determinations of guilt and imposition of punishment.” (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 Called The Graham Amendment “Fundamentally Lawless” And Compared It To The Kind Of Laws That “Dictatorships Have Passed...” “When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government. We urge you to vote to remove the court-stripping provisions of the Graham Amendment from the pending legislation.” (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)