Research

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’s 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)