Supreme Court Nominee Elena Kagan: Presidential Authority and the Separation of Powers

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Supreme Court Nominee Elena Kagan:

Presidential Authority and the Separation of

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-name redactedLegislative Attorney

June 4, 2010

Congressional Research Service

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www.crs.gov

R41272

CRS Report for Congress

Prepared for Members and Committees of Congress

Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

Summary

In light of Elena Kagan’s nomination to serve as an Associate Justice of the United States

Supreme Court, this report analyzes then-Professor Kagan’s views of executive power and the

doctrine of separation of powers as laid most extensively out in her 2001 Harvard Law Review

article Presidential Administration. This report will proceed as follows. First, it will briefly

describe the constitutional and legal basis for presidential authority with respect to domestic

policy, focusing on the relevant constitutional text as well as the Supreme Court jurisprudence

that forms the foundation for almost all discussions of executive authority. Second, the report will

provide a discussion of the well-established and competing theories of executive power, the

traditional view as well as the “unitary theory of the executive.” Third, the report will discuss

Professor Kagan’s theory of “presidential administration” and her legal responses to both of the

aforementioned theories. Fourth, the report will turn to the application of Professor Kagan’s

theory to the field of administrative law, with an emphasis on the non-delegation doctrine and the

level of deference often afforded to executive branch agencies by the judiciary, often referred to

as Chevron deference. Finally, the report will provide a discussion of some of the criticism of

Professor Kagan’s views, especially as they relate to the President’s legal authority in the areas of

foreign policy and national security, both of which are expected by many to be issues that the

Supreme Court will adjudicate in future terms.

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

Contents

Constitutional and Legal Basis for Executive Authority...............................................................1

Constitutional Text................................................................................................................1

Decisions of the United States Supreme Court.......................................................................2

Youngstown Sheet & Tube v. Sawyer ..............................................................................2

Appointment and Removal Cases ....................................................................................4

Theories of Executive Power.......................................................................................................7

The “Traditional” View .........................................................................................................7

The “Unitary Theory of the Executive” .................................................................................8

Presidential Administration .........................................................................................................9

Responses to Traditionalist Arguments ................................................................................ 11

Response to the “Unitary Theory of the Executive” ............................................................. 13

Presidential Administration and Administrative Law ................................................................. 14

The Non-Delegation Doctrine ............................................................................................. 14

Judicial Review of Agency Action....................................................................................... 16

Presidential Administration, Foreign Affairs, and National Security .......................................... 19

Conclusion................................................................................................................................ 20

Contacts

Author Contact Information ...................................................................................................... 20

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

n 2001, the Harvard Law Review published Presidential Administration by then-Visiting

Professor of Law Elena Kagan.1 Drawing heavily from her experiences as a member of the

White House Counsel’s office and as Deputy Assistant to President William J. Clinton for

Domestic Policy, Professor Kagan articulates both a political and legal theory of presidential

authority over agencies in the executive branch. Professor Kagan’s theory of “presidential

administration” is seen as a significant departure from the established, competing theories that

have been previously developed by the academic and legal literature regarding administrative law

and separation of powers. Professor Kagan’s article has been quite influential in these fields, cited

and discussed by numerous academic and legal experts,2 cited by the Supreme Court,3 as well as

in two appellate court opinions.4

In light of Ms. Kagan’s nomination to serve as an Associate Justice of the United States Supreme

Court, this report analyzes Kagan’s views of executive power and the doctrine of separation of

powers as laid out in Presidential Administration. This report will proceed as follows: First, it

will briefly describe the constitutional and legal basis for presidential authority with respect to

domestic policy, focusing on the relevant constitutional text as well as the Supreme Court

jurisprudence that forms the foundation for almost all discussions of executive authority. Second,

the report will provide a discussion of the well-established and competing theories of executive

power, the traditional view as well as the “unitary theory of the executive.” Third, the report will

discuss Professor Kagan’s theory of “presidential administration” and her legal responses to both

of the aforementioned theories. Fourth, the report will turn to the application of Professor Kagan’s

theory to the field of administrative law, with an emphasis on the non-delegation doctrine and the

level of deference often afforded to executive branch agencies by the judiciary, often referred to

as Chevron deference. 5 Finally, the report will provide a discussion of some of the criticism of

Professor Kagan’s views, especially as they relate to the President’s legal authority in the areas of

foreign policy and national security, both of which are expected by many to be issues that the

Supreme Court will adjudicate in future terms.

Constitutional and Legal Basis for Executive

Authority

Constitutional Text

Article II of the Constitution establishes the office of President of the United States, creates an

executive branch of government, and forms the textual basis for much of the President’s authority

and power. Of specific importance to separation of powers and presidential authority scholars are

several clauses in Article II. The first two are found in Article II, § 1, clause 1. The first,

commonly referred to as the “Vesting Clause,” states that “The executive Power shall be vested in

Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001).

According to a search of the Westlaw “Journals and Law Review” database, Professor Kagan’s article has been cited

over 300 times by secondary sources.

F.C.C. v. Fox Television Stations, Inc., ___ U.S. ___ , 129 S.Ct. 1800 (2009).

See Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667 (D.C. Cir. 2008) (Kavanaugh, J.,

dissenting); see also Estate of Kanter v. C.I.R., 337 F.3d 833 (7th Cir. 2003).

See Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

a President of the United States of America.”6 The second establishes the executive departments,

stating that “[the President] may require the Opinion, in writing, of the principal Officer in each

of the executive Departments, upon any Subject relating to the Duties of their respective

Offices.”7 Additionally, there is the language of the Appointments Clause, under which the

President may “nominate, and by and with the Advice and Consent of the Senate, shall appoint

Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other

Officers of the United States, whose Appointments are not herein otherwise provided for, and

which shall be established by Law.”8 Finally, there is the “Take Care Clause” at Article II, § 3,

which states that the President “shall take Care that the Laws be faithfully executed.”9

Decisions of the United States Supreme Court

In addition to the Constitution’s text, there have been several influential decisions by the Supreme

Court that expound upon the notion of separation of powers and presidential authority. The first is

Youngstown Sheet & Tube v. Sawyer,10 which addresses the scope and nature of the President’s

implied constitutional authority. Also central to discussions of Presidential authority are three

cases dealing with the President’s power of appointment and removal of “Officers of the United

States,” Myers v. United States,11 Humphrey’s Executor v. United States,12 and Morrison v.

Olson.13

Youngstown Sheet & Tube v. Sawyer

While there is little doubt that the Constitution vests significant legal authority in the President, a

central tenet of its structure is the notion that each branch of government is confined to its own

sphere of influence. Thus, although the President has plentiful authority with respect to the

execution of the laws, he may not exercise his powers in a manner that encroaches upon the

powers and duties of the other branches. Similarly, Congress and the Judiciary arguably cannot

encroach upon powers that are committed to the President and the executive branch.

This bedrock principle was addressed by the Supreme Court in the seminal case Youngstown

Sheet & Tube Co. v. Sawyer, in which the Court was faced with an attempt by the executive

branch to usurp the legislative power of Congress. In Youngstown, the Court dealt with President

Truman’s executive order directing the seizure of steel mills, in an effort to avert the effects of a

workers’ strike during the Korean War. Invalidating the President’s order, Justice Black writing

for the majority held that under the Constitution, “the President’s power to see that laws are

faithfully executed refutes the idea that he is to be a lawmaker.”14 Specifically, Justice Black

maintained that presidential authority to issue such an order “must stem either from an act of

U.S. CONST. Art. II, § 1, cl. 1.

Id.

U.S. CONST. Art. II, § 1, cl. 2.

U.S. CONST. Art. II, § 3.

343 U.S. 579 (1953).

272 U.S. 52 (1926).

295 U.S. 602 (1935).

487 U.S. 654 (1988).

Youngstown, 343 U.S. at 587.

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Congress or from the Constitution itself.”15 Applying this reasoning, Justice Black’s majority

opinion determined that because no statute or constitutional provision authorized such

presidential action, the seizure order was in essence a legislative act. The Court further noted that

Congress had rejected seizure as a means to settle labor disputes during consideration of the TaftHartley Act.16 Given this characterization, the Court deemed the executive order to be an

unconstitutional violation of the separation of powers doctrine, explaining “the founders of this

Nation entrusted the lawmaking power to the Congress alone in both good and bad times.”17

While Justice Black’s majority opinion in Youngstown arguably refutes the notion that the

President possesses implied constitutional powers, it is perhaps Justice Jackson’s concurrence that

has proven to be the most influential opinion from Youngstown.18 In his concurring opinion,

Justice Jackson articulates a three-part analytical framework for assessing the validity of

presidential actions in relation to constitutional and congressional authority.

Justice Jackson’s first category focuses on whether the President has acted according to an

express or implied grant of congressional authority. If so, according to Justice Jackson,

presidential “authority is at its maximum, for it includes all that he possesses in his own right plus

all that Congress can delegate,” and such action is “supported by the strongest of presumptions

and the widest latitude of judicial interpretation.”19 With respect to the second category, Justice

Jackson maintained that, in situations where Congress has neither granted nor denied authority to

the President, the President acts in reliance only “upon his own independent powers, but there is a

zone of twilight in which he and Congress may have concurrent authority, or in which its

distribution is uncertain.”20 In the third and final category, Justice Jackson stated that in instances

where presidential action is “incompatible with the express or implied will of Congress,” the

power of the President is at its minimum, and any such action may be supported pursuant to only

the President’s “own constitutional powers minus any constitutional powers of Congress over the

matter.”21 In such a circumstance, presidential action must rest upon an exclusive power, and the

Courts can uphold the measure “only by disabling the Congress from acting upon the subject.”22

Applying this framework to President Truman’s seizure order, Justice Jackson determined that

analysis under the first category was inappropriate, due to the fact that President Truman’s seizure

of the steel mills had not been authorized by Congress, either implicitly or explicitly. 23 Justice

Jackson also concluded that the second category was “clearly eliminated,” in that Congress had

addressed the issue of seizure, through statutory policies conflicting with the President’s

actions.24 Employing the third category, Justice Jackson noted that President Truman’s actions

could only be sustained by determining that the seizure was “within his domain and beyond

Id. at 585.

Id. at 586.

Id. at 589; see also Chamber of Commerce v. Reich, 74 F.3d 1322 (1996) (striking down an executive order by

President Clinton that prohibited federal agencies from contracting with employers that permanently replaced striking

employees for being in direct conflict with provisions in the National Labor Relations Act).

Id. at 635 (Jackson, J., concurring).

Id. at 635-38 (Jackson, J., concurring).

Id. at 637 (Jackson, J., concurring).

Id. (Jackson, J., concurring).

Id. at 637-38 (Jackson, J., concurring).

Id. at 638 (Jackson, J., concurring).

Id. at 639 (Jackson, J., concurring).

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

control by Congress.”25 Justice Jackson established that such matters were not outside the scope

of congressional power, reinforcing his declaration that permitting the President to exercise such

“conclusive and preclusive” power would endanger “the equilibrium established by our

constitutional system.”26

Appointment and Removal Cases

Equally critical to discussions of presidential authority and the separation of powers is the

concept of appointment and removal of executive branch officials. As previously noted, the

Constitution specifically provides for the presidential appointment of executive branch officials, 27

but is silent with respect to their removal from office. The Constitution’s silence regarding

removal authority has been the subject of intense debate and disagreement since the creation of

the Department of Foreign Affairs (now known as the Department of State) by the first

Congress.28 During debate on the bill to create the department, the House of Representatives,

relying principally on arguments from James Madison, overcame considerable objection29 and

remained silent with respect to the President’s power to remove appointees, thereby implying that

removal authority was reserved to the President by the Constitution.30 The Senate, however, much

less sanguine about abdicating such power, split evenly on the question. Vice President John

Adams cast the tie-breaking vote in favor of allowing the President unfettered removal powers.31

Notwithstanding this history, until its 1926 decision in Myers v. United States, the Supreme Court

had yet to render a decisive pronouncement regarding the removal power, its extent, and location.

The question presented by Myers was the constitutionality of a Postmaster’s General order, acting

by direction of the President, to remove from office a first-class postmaster. The removal order

was issued despite the fact that in 1876 Congress enacted the following restriction on the terms of

a postmaster’s office: “Postmasters of the first, second, and third classes shall be appointed and

may be removed by the President by and with the advice and consent of the Senate, and shall hold

their offices for four years unless sooner removed or suspended according to law.”32

Id. at 640 (Jackson, J., concurring).

Id. at 638, 640-45 (Jackson, J., concurring).

U.S. CONST. Art. II, § 1, cl. 2.

See JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 410, n. 123

(1996).

Those Members who objected relied on a statement by Alexander Hamilton in Federalist No. 77, in which he argued

that consent of the Senate “would be necessary to displace as well as to appoint” federal officials. THE FEDERALIST NO.

77, at 459 (Alexander Hamilton) (Clinton Rossiter ed., 1961). During the debate, however, Hamilton, in a note to

Representative William Smith of Maryland, indicated that he had changed his mind on the subject and “was now

convinced that the President alone should have the power of removal at pleasure.” See Robert V. Percival, Presidential

Management of the Administrative State: The Not-So-Unitary Executive, 51 DUKE L.J. 963, 974 (2002) (citing George

C. Rogers, ed., The Letters from William Laughton Smith to Edward Rutledge, June 6, 1789 to April 28, 1794, 69 S.C.

HIST. MAG. 1, 8 (1968)).

See MARGARET C.S. CHRISTMAN, THE FIRST FEDERAL CONGRESS, 1789-1791, at 136 (1989).

See RAKOVE, supra note 28, at 418, n. 15.

19 Stat. 78, 80 (1876).

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

Chief Justice William H. Taft, formerly the President of the United States, issued the opinion for a

divided Court. The opinion upheld the order of removal and declared the statutory provision

adopted by Congress unconstitutional. 33 According to the Chief Justice,

Article II grants to the President the executive power of the Government, i.e., the general

administrative control of those executing the laws, including the power of appointment and

removal of executive officers—a conclusion confirmed by his obligation to take care that the

laws be faithfully executed; that Article II excludes the exercise of legislative power by

Congress to provide for appointments and removals, except only as granted therein to

Congress in the matter of inferior offices; that Congress is only given power to provide for

appointments and removals of inferior officers after it has vested, and on condition that it

does vest, their appointment in other authority than the President with the Senate’s consent;

that the provisions of the second section of Article II, which blend action by the legislative

branch, or by part of it, in the work of the executive, are limitations to be strictly construed

and not to be extended by implication; that the President’s power of removal is further

established as an incident to his specifically enumerated function of appointment by and with

the advice of the Senate, but that such incident does not by implication extend to removals

the Senate’s power of checking appointments; and finally that to hold otherwise would make

it impossible for the President, in case of political or other differences with the Senate or

Congress, to take care that the laws be faithfully executed.34

Thus, Myers stands for the proposition that the Constitution endows the President with an unconstrainable power to remove all officers in whose appointment he has participated, the only

exception being federal judges, whose tenure is constitutionally prescribed. As a result of this

broad holding, the constitutional validity of several “independent agencies” that existed at the

time—such as the Interstate Commerce Commission, and the Federal Trade Commission—whose

appointees enjoyed statutory protection from at-will removal by the President, was called into

question.

A mere seven years after Myers, the Court was again faced with a controversy involving the

scope of the President’s removal authority. Humphrey’s Executor v. United States35 involved the

decision of President Franklin D. Roosevelt to remove from office Humphrey, a member of the

Federal Trade Commission (FTC), based solely on their differing policy opinions. Humphrey,

who enjoyed statutory “for cause” removal protection, sued for salary. The Court, in an opinion

by Justice Sutherland, limited the holding of Myers to only units of the executive department.36

The Court distinguished, but did not overrule, Myers, concluding that the President could not

remove Humphrey because the FTC performs both quasi-legislative and quasi-judicial

functions.37 According to the Court, there is a legal difference between executive departments and

independent agencies which, by congressional design, are intended to exercise functions that are

to be free from executive control. Thus, the Court held that the Congress possesses the necessary

authority when creating such entities to

Myers, 272 U.S. at 164.

Id. at 163-64.

295 U.S. 602 (1935).

Id. at 627 (stating that “[t]he actual decision in the Myers case finds support in the theory that such an officer is

merely one of the units in the executive department, and, hence, inherently subject to the exclusive and illimitable

power of removal by the Chief Executive, whose subordinate and aide he is”).

Id.

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fix the period during which they shall continue in office, and to forbid their removal except

for cause in the meantime. For it is quite evident that one who holds his office only during

the pleasure of another, cannot be depended upon to maintain an attitude of independence

against the latter’s will ….38

The tension between the scope of the President’s removal power with respect to executive

departments as opposed to independent agencies, as well as between the holdings in Myers and

Humphrey’s Executor, would eventually come to a head in the 1988 case, Morrison v. Olson.39

In Morrison, the Court was faced with questions regarding the constitutionality of the

Independent Counsel Act.40 In adopting the statute, Congress had declared that an independent

counsel, who was appointed by a special court upon application by the Attorney General, may be

removed by the Attorney General “only for good cause, physical disability, mental incapacity, or

any other condition that substantially impairs the performance of such independent counsel’s

duties.”41

Given the nature of the duties of the independent counsel, the Court was confronted directly with

the tension created by its holdings in Myers and Humphrey’s Executor. On one hand, insofar as

independent counsels exercised “purely” executive functions, it was argued that the holding in

Myers governed and, thus, required the invalidation of the statute. Conversely, it remained far

from clear that the broad dicta from Myers, stating that the President must be able to remove at

will officers performing “purely” executive functions, had survived Humphrey’s Executor. Rather

than rely solely on bright-line distinctions between the functions of the officials at issue (i.e.,

executive versus quasi-legislative or quasi-judicial), the Court shifted the analytical focus to the

question of whether “the removal restrictions are of such a nature that they impede the President’s

ability to perform his constitutional duty ….”42

Analyzing the question this way, the Court could discern no compelling reason to find that the

Independent Counsel Act’s good cause limitation interfered with the President’s performance of

his constitutional duties. 43 Although the independent counsel did exercise executive-type, lawenforcement functions, the jurisdiction and tenure of each counsel was either limited with respect

to policymaking authority, or significant administrative power was lacking.44 Regardless,

according to the Court, the removal authority did afford the President, acting through his Attorney

General, with adequate power to ensure the “faithful execution” of the laws, and that the

independent counsel is competently performing the statutory duties of the office. 45

After Morrison, it is now affirmed that Congress may not involve itself in the removal of officials

performing purely executive functions.46 It is also established that, in creating offices both in the

Id. at 628.

487 U.S. 654 (1988).

P.L. 95-521, title VI, 92 Stat. 1867 (codified as amended at 28 U.S.C. § 591 et seq. (1988)).

28 U.S.C. § 596(a)(1) (1988).

Morrison, 487 U.S. at 691.

Id. at 691-92.

Id. at 692.

Id.

Id. at 693 (stating that “the system of separated powers and checks and balances established in the Constitution was

regarded by the Framers as ‘a self-executing safeguard against the encroachment or aggrandizement of one branch at

the expense of the other’”) (internal citation omitted).

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executive branch and in creating independent agencies, Congress has considerable discretion in

statutorily limiting the President’s or another appointing authority’s power to remove. 47

Furthermore, it is evident from the opinion that Congress’s discretion is not unbounded, as there

remain offices which may be essential to the President’s performance of his constitutionally

assigned powers and duties such that limits on removal would be constitutionally impermissible.48

While after Morrison there are no longer bright lines demarking one type of office from another,

the decision requires close case-by-case analysis.

Theories of Executive Power

Prior to Professor Kagan’s 2001 article, separation of powers and presidential authority analysis

was largely divided into two camps, the “traditional view,” and the “unitary theory of the

executive.” Both of these camps rely, in various ways, on the constitutional text and Supreme

Court opinions discussed above, but reach very different conclusions about the scope of

presidential power and Congress’s control with respect to the powers and duties of executive

departments and agencies.

The “Traditional” View

Adherents to the “traditional” view of separation of powers and presidential authority generally

assert that Congress possesses the constitutional authority to vest discretionary decision-making

authority directly in the heads of the departments and agencies that it creates.49 Thus, while

traditionalists accept that the President can supervise and guide agency policymaking, they argue

that where Congress has, by statute, specifically vested the decision-making authority in the

agency head, the President cannot “go so far as to displace the agency head’s discretion to make

decisions vested in that officer by law.”50

The legal basis most often offered for the “traditional” view is based on both the text of the

Constitution and in the principles of statutory construction as applied to Congress’s delegation of

authority to the agency head. Traditionalists will often cite two provisions of the Constitution that

directly refer to duties and powers being assigned to officers who are not the President. Initially,

there is the “Necessary and Proper Clause,” which confers on Congress the authority to “make all

Laws which shall be necessary and proper for carrying into Execution … all other Powers vested

by this Constitution in the Government of the United States, or in any Department or Officer

Id. at 687-88.

Id. at 690.

See, e.g., Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 25 (1995)

(“[T]he President has no authority to make the decision himself, at least if Congress has conferred the relevant

authority on an agency head.”); Thomas 0. Sargentich, The Administrative Process in Crisis: The Example of

Presidential Oversight of Agency Rulemaking, 6 ADMIN L. J. AM. U. 710, 716 (1993) (“[T]he power to regulate remains

where the statute places it: the agency head ultimately is to decide what to do.”); Peter L. Strauss, The Place of

Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM L. REV. 573, 649-50 (1984)

(explaining that “the agencies to which rulemaking is assigned,” rather than the President, possess “ultimate decisional

authority”).

Thomas O. Sargentich, The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential

Administration, 59 ADMIN L. REV. 1, 7 (2007).

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thereof.”51 In addition, as mentioned above, Article II, § 1, cl. 1 states that “[the President] may

require the Opinion, in writing, of the principal Officer in each of the executive Departments,

upon any Subject relating to the Duties of their respective Offices.”52

With respect to statutory construction, traditionalists will often point to the plain language of

statutory delegations employed by Congress. When Congress delegates decision-making

authority to the heads of agencies, it typically does so directly and unequivocally. For example,

with respect to the regulation of air pollution, Congress has specifically stated that “[t]he

Administrator [of the Environmental Protection Agency] is authorized to prescribe such

regulations as are necessary to carry out his functions under this chapter.”53 Thus, by focusing on

what Congress actually does—namely, vesting decision-making authority directly with the

agency head—it has been argued by traditionalists that had Congress wanted the President to

have final authority it would have expressly so provided.54 This construction derives further

support from examples where Congress has specifically provided the President with the statutory

authority to suspend or overturn the agency head’s discretionary decision under certain

circumstances, usually ones involving national security or other emergency situations. For

instance, a provision in the Clean Air Act allows for the President, and only the President, to

determine that a national or regional emergency of such severity exists that portions of the

applicable air quality control standards can be suspended.55 As a result, according to one

commentator, “[i]f the [P]resident has express authority to overturn the legal consequences of

agency decisions in some circumstances, but not others, the argument for inferring congressional

intent to permit the [P]resident generally to displace agency decisions is somewhat weaker.”56

The “Unitary Theory of the Executive”

In contrast to traditionalists, advocates of the “unitary theory of the executive” or “unitarians”

generally ascribe to a view of presidential authority that has three prongs: First, unitarians often

argue that the President has a constitutionally based duty to provide policy direction to officers of

the United States; second, unitarians claim that the President possesses the unfettered power to

remove from office any officer who does not comply with the President’s policy directives; and

finally, unitarians generally assert that Congress cannot constitutionally assign executive powers

to agencies or other entities that are independent or outside the scope of the President’s control.57

U.S. CONST. Art. I, § 8, cl. 18 (emphasis added).

U.S. CONST. Art. II, § 1, cl. 1 (emphasis added).

42 U.S.C. § 7601(a)(1) (2006).

See Sargentich, supra note 50, at 10.

See Clean Air Act, P.L. 95-95 § 107(f), 91 Stat. 691 (1977) (codified as amended at 42 U.S.C. § 7401(f) (2006)).

Percival, supra note 29, at 1008.

See Mark Tushnet, A Political Perspective on the Theory of the Unitary Executive, U. PA. J. CONST. L. 313, 315, 319

(2010) see also, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104

YALE L. J. 541 (1994); Martin S. Flaherty, The Most Dangerous Branch, 5 YALE L. J. 1725 (1996); Lawrence Lessig &

Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994); Steven G. Calabresi & Kevin H.

Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1165-68 (1992);

Lee S. Liberman, Morrison v. Olson: A Formalistic Perspective on Why the Court Was Wrong, 38 AM U. L. REV. 313,

314-17 (1989); Geoffrey P. Miller, Independent Agencies, 1986 SUP. CT. REV. 41 (1986); David P. Currie, The

Distribution of Powers After Bowsher, 1986 SUP. CT. REV. 19, 35-36 (1986).

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As a matter of law, unitary theory supporters look to the plain text of several constitutional

provisions, which were discussed above. Supporters of the “unitary theory of the executive” have

argued that the “Vesting Clause” of Article II, is best read and most properly understood to be a

general grant of power to the President.58 Focusing on the language “shall be vested,” unitarians

believe that this construction, identical to the construction used to grant judicial power to Article

III courts, creates a single and exclusive executive actor, namely, the President. Further bolstering

this argument, unitarians argue, is the language of the “Take Care Clause.” According to two

prominent unitary executive scholars, the President’s constitutional obligation to “take care that

the Laws be faithfully executed” cannot be “fulfilled unless the Article II Vesting Clause was, in

fact, already a substantive grant of executive power to the President. Accordingly, the use of the

verb ‘take care’ in the Take Care Clause bolsters the power-grant reading of the Vesting Clause of

Article II.”59 In other words, according to unitarians, the only way that the “Take Care Clause”

makes sense is if the “Vesting Clause” is read to grant all executive powers to the President.60

The remaining two prongs of the “unitary theory of the executive” are premised on the

President’s power to appoint and remove “officers of the United States.” Relying on both the

historical actions of the First Congress in creating the Department of Foreign Affairs,61 President

Andrew Jackson’s removal of Treasury Secretary William Duane for his failure to withdraw funds

from the Second Bank of the United States,62 as well as Chief Justice Taft’s opinion in Myers v.

United States, supporters of the unitary theory of the executive assert that Presidents should have

the power to remove at will all persons exercising executive authority on their behalf. 63

Customary arguments advanced to support this theory include an increase in political

accountability, as the President is the sole person responsible for the performance of the

executive. 64 In addition, it has been argued that dividing executive authority among multiple

governmental entities decreases the general public’s ability to hold executive officials

accountable, can increase administrative bargaining costs, and may lead to debilitating collective

action problems.65

Presidential Administration

According to Professor Kagan, neither the traditional model nor the “unitary theory of the

executive” adequately describes the reasons that she believes President Clinton enjoyed success

See Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 YALE L. J. 541,

571 (1994).

Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105

HARV. L. REV. 1153, 1198, n. 221 (1992).

See Steven G. Calabresi & Saikrishna B. Prakash, supra note 58, at 583.

See supra notes 28-31 and accompanying text.

See Steven G. Calabresi & Christopher S. Yoo, Remove Morrison v. Olson, 62 VAND. L. REV. EN BANC 103, 113

(2009).

This argument is often made despite the Supreme Court’s holding to the contrary in Morrison v. Olson. See supra

notes 41-48 and accompanying text. Some supporters of the “unitary theory of the executive” have consistently argued

that Morrison was wrongly decided, and have urged the Supreme Court to utilize the most recent Appointments Clause

controversy, Free Enterprise Fund v. Public Company Accounting Oversight Board, to overturn the decision. See, e.g.,

Calabresi & Yoo, supra note 62.

See, e.g., Calabresi & Yoo, supra note 62 at 116.

See id; see also Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled Executive, 93

MINN L. REV. 1696, 1705–12, 1717–21, 1730–33 (2009).

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

in controlling the vast bureaucracy of the executive branch. By adopting and building on the

directives and policies of the Reagan Administration and its regulatory review process,66

President Clinton was able to dramatically increase the President’s level of participation in the

administrative decision-making process. Professor Kagan’s article posits that it was President

Clinton’s “articulation and use of directive authority over regulatory agencies, as well as his

assertion of personal ownership over regulatory product” that led to the development of a new

and distinctive form of administrative control.67 This new form of administrative control includes

two parts. First, the use of “directive authority,” which Kagan defines as “commands to executive

branch officials to take specified actions within their statutorily delegated discretion.”68 The

second component is what Professor Kagan termed “Presidential ownership,” and includes, for

example, the public announcement of many regulatory decisions and accomplishments directly by

the White House rather than by the responsible agency officials. 69 The combination of these two

concepts as well as the changed relationship between the President and the administrative

agencies under Professor Kagan’s theory of “presidential administration,” raise significant legal

questions, as conceptually these notions do not fit into either of the existing models of separation

of powers and presidential authority analysis.

Professor Kagan addresses these legal issues by employing the very same analytical framework

as both the traditionalists and unitarians. According to Professor Kagan, at the core of the legal

framework for “presidential administration” is a re-conceptualization of how congressional

delegations are to be interpreted. Specifically, under her theory of “presidential administration,”

delegations by Congress granting discretion to executive branch officials should be read and

interpreted as leaving ultimate decision-making authority with the President.70 Similar delegations

to independent agencies, however, are not to be interpreted in the same manner, and, thus,

Congress can retain oversight and control over the decisions of those entities.71

The first legal hurdle that such a theory must overcome is that it seems to run directly contrary to

Justice Black’s majority opinion in Youngstown Sheet & Tube, as it would appear that the

President, by asserting decision-making authority where Congress has expressly delegated it

elsewhere, is acting as a “lawmaker.” Professor Kagan, however, distinguishes her concept of

presidential administration from President Truman’s steel seizure order by noting that in

Youngstown, Congress had specifically reserved the decision regarding seizures to itself.

Conversely, according to Professor Kagan, President Clinton’s directives were always issued in

situations where Congress had expressly delegated authority to an entity other than itself. Thus,

the Court in Youngstown never reached the question of the President’s authority in these types of

contexts, much less rendered a decision. Thus, while Youngstown establishes that the President

cannot encroach into decisions that Congress has reserved for itself, it says nothing about the

President’s ability to assume the decision-making function from a subordinate agency official that

Congress has specifically authorized to act.72

See Exec. Order 12291 (Feb. 17, 1981).

Kagan, supra note 1, at 2250.

Id.

Id. at 2251-252.

Id. at 2320.

Id.

Id. at 2321-322.

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

Next, Professor Kagan addresses her theory in correlation with the removal line of cases

previously discussed. Accepting the removal cases as “certain to remain the law,”73 Kagan turns

to a statutory construction argument to support her claim of broad presidential authority over

agency decision making. According to Professor Kagan, delegation statutes can, and should, be

read to “assume that the delegation runs to the agency official specified, rather than to any other

agency official, but still subject to the ultimate control of the President.”74 For example, when

Congress delegates decisions related to implementation of the Medicare statute to the Secretary of

Health and Human Services (HHS), Professor Kagan not only accepts the proposition that the

statute should be read to mean that the Secretary of HHS and not the Secretary of Treasury is

legally empowered to make the decision, but also adds the presumption that, unless specifically

excluded by Congress, the President is legally entitled to participate in the process by issuing

directives to the Secretary of HHS. For Professor Kagan, this additional presumption is expressly

based on the reasoning of the removal cases. Relying on the distinction between delegations to

independent agencies and delegations to executive branch agencies, she notes that, in the former,

Congress has already acted by limiting the President’s appointment and removal authority to

insulate the agency’s decision making from presidential control. Thus, according to Professor

Kagan, “the agency’s heads are not subordinate to the President in other respects; making the

heads subordinate in this single way would subvert the very structure and premises of the

agency.”75 In the latter, the presumption works the other way. Congress, when delegating to an

executive branch agency head, already knows that the official is subordinate to the President, can

be terminated at will, and is subject to procedural oversight. Therefore, according to Professor

Kagan, “these powers establish a general norm of deference among executive officials to

presidential options, such that when Congress delegates to an executive official, it in some

necessary and obvious sense also delegates to the President.”76

Responses to Traditionalist Arguments

In articulating her theory of “presidential administration,” Professor Kagan directly addresses

several of the arguments and concepts put forward by the two existing separation of power

camps. Principally, Professor Kagan’s concept and interpretation of congressional delegations run

directly contrary to both the views of the traditionalists as well as the unitarians.

Professor Kagan responds to three arguments that may be advanced by those supportive of the

“traditional” perspective. First, she suggests that the traditionalists may attack her concept of

congressional delegation on pure statutory interpretation grounds, arguing that Congress’s silence

with respect to the President’s role in the process is a denial of any such authority. To make this

argument, the traditionalists may rely on the canon of construction “expressio unius est exclusio

alterius,”77 arguing that by specifically delegating to the agency head, Congress has expressly

excluded the President from having any role in the process.78 Professor Kagan responds by first

Id. at 2326.

Id. at 2326-327.

Id. at 2327.

Id.

Commonly translated as “to include one thing is to exclude another.” See BLACK’S LAW DICTIONARY, 602 (7th Ed.

1999).

See Kagan, supra note 1 at 2328.

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

noting that the canon is unreliable79 and, second, that it fails to account for the superiorsubordinate relationship between the President and his cabinet officials. Interpreters of statutes,

according to Kagan, should read delegation statutes in light of this long-standing relationship that

has been left in place by Congress. With that background understanding, delegation statutes that

are silent as to the President’s role should be read as permitting the use of the President’s directive

powers.80

A second argument that may be advanced by holders of the traditional point of view is that

Congress knows how to, and has, delegated decision-making authority directly to the President.81

Thus, when Congress delegates authority to an administrative official other than the President, it

is to be interpreted as meaning that Congress wishes to insulate the official from Presidential

control.82 In response, Professor Kagan argues that delegations to the President are fundamentally

different in nature from delegations to other administrative officials; therefore, the conclusion that

Congress intends no presidential involvement when delegating to other officials does not follow.83

Professor Kagan asserts three arguments to support her contention: First, delegations to the

President are, by statute, subject to further delegation by the President, 84 whereas delegations to

other officials deprive the President of that authority; second, delegations to the President express

a preference by Congress that the President participate in the process; and third, that delegation to

the President gives notice that Congress intends to hold him responsible and accountable for any

and all decisions made. 85 For these reasons, Professor Kagan contends that congressional

delegations “logically coexist with a presumption that the President has ultimate control over all

agency decisions.”86

Finally, traditionalists argue that Professor Kagan’s theory conflicts with congressional intent

because permitting such overarching involvement by the President runs contrary to Congress’s

institutional interests.87 Congress, as this argument would contend, generally prefers that decision

making be done by administrative agencies which are dependant on and responsible to it as

opposed to the President. However, as Professor Kagan points out, if this were actually the case

then the independent agencies would greatly outnumber, both in terms of size and authority, their

executive branch counterparts.88 Rather, and seemingly contrary to its interests, Congress has

increasingly delegated authority directly to officials within the executive branch. 89 Thus, “[t]here

seems little reason to presume that as to the single matter of directive authority, Congress selfconsciously has adopted such an uncommonly self-protective posture.”90

Id. at 2329.

Id.

Id. (citing 3 U.S.C. § 301 (2006) (permitting the President to delegate to any official, required to be appointed by and

with the advice and consent of the Senate, any function vested in the President by law)).

Id.

Id. at 2330.

Id.

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

Response to the “Unitary Theory of the Executive”

At first glance, it would appear that Professor Kagan’s theory of “presidential administration” has

much in common with the “unitary theory of the executive”; however, Professor Kagan’s article

specifically declines to adopt the “unitary theory of the executive” for two reasons:

First, although I am highly sympathetic to the view that the President should have broad

control over administrative activity, I believe, for reasons I can only sketch here, that the

unitarians have failed to establish their claim for plenary control as a matter of constitutional

mandate. The original meaning of Article II is insufficiently precise and, in this area of

staggering change, also insufficiently relevant to support the unitarian position. And the

constitutional values sometimes offered in defense of this claim are too diffuse, too diverse,

and for these reasons, too easily manipulable to justify removing from the democratic

process all decisions about the relationship between the President and administration

especially given that this result would reverse decades’ worth of established law and

invalidate the defining features of numerous and entrenched institutions of government.

Second and equally important, the cases sustaining restrictions on the President’s removal

authority, whether or not justified, are almost certain to remain the law (at least in broad

terms, if not in specifics); as a result, any serious attempt to engage the actual practice of

presidential-agency relations must incorporate these holdings and their broader implications

as part of its framework.91

Professor Kagan’s rejection of the “unitary theory of the executive” is perhaps best articulated by

her consistent differentiation between delegations by Congress to executive branch agencies (that

provide the President with broad “directive authority”) and delegations to independent agencies

(that provide the President with no “directive authority”).92 Supporters of the “unitary theory of

the executive” often insist that “the Constitution provides the President with plenary authority

over administration, so that Congress can no more interfere with the President’s directive

authority than with his removal power.”93 Professor Kagan’s express acceptance of Congress’s

power to create agencies that are insulated and separate from Presidential control arguably

represents a significant distinction between her concept of “presidential administration” and the

“unitary theory of the executive.”

To place Professor Kagan’s views in context, if a horizontal line were to be drawn with the

traditional view on the far left end and the “unitary theory of the executive” at the far right end, it

would seem reasonable to assert that the concept of “presidential administration” articulated falls

somewhere in the center, albeit closer to the right end of the line. Exactly where on the right of

center Professor Kagan’s article falls has been a matter of academic debate since the publication

of the article. Although the paper has generated a significant amount of academic scholarship, and

has been cited over 300 times, its views on the nature of congressional delegation and executive

control of the administrative process are not likely to generate cases and controversies that will

require adjudication by the courts, rather they are most often resolved by negotiations between

the political branches of government. As such, it is very difficult to extrapolate a judicial

philosophy from the text of Presidential Administration.

Id. at 2326.

See id. at 2251 & 2237.

Id. at 2251 (citing Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104

YALE L.J. 541, 599 (1994) (stating that “[T]he President must be able to control subordinate executive officers through

the mechanisms of removal, nullification, and execution of the discretion ‘assigned’ to them himself”).

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

The limited instances of judicial review indicate that, at least thus far, courts have been reluctant

to address the constitutionality of presidential involvement in the rulemaking process. For

example, in Public Citizen Health Research Group v. Tyson,94 the court addressed the validity of a

rule promulgated by the Occupational Safety and Health Agency governing ethylene oxide,

including a challenge based on the argument that a critical portion of the proposed rule had been

deleted based on a command from the Office of Management and Budget (OMB).95 While stating

that “OMB’s participation in the rulemaking presents difficult constitutional questions concerning

the executive’s proper rule in administrative proceedings and the appropriate scope of delegated

power from Congress to certain executive agencies,” the court nonetheless found that it had “no

occasion to reach the difficult constitutional questions presented by OMB’s participation” given

its finding that the agency’s decision to delete the material in question was not supported by the

rulemaking record. 96

The absence of judicial involvement in these types of constitutional issues indicates that they are

often settled during the lawmaking process as the President, through his administration, and

Congress work to draft delegations in a manner consistent with traditional practice and existing

understandings of the Constitution. Thus, it appears unlikely that a case involving the type of

administrative structures and presidential activities discussed in Presidential Administration will

arise and require adjudication by the Supreme Court.

Presidential Administration and Administrative

Law

Having laid out her theory of “presidential administration,” Professor Kagan turns to the field of

administrative law as fertile ground for developing judicial doctrines that should embrace and

support her concept.97 Professor Kagan specifically focuses her analysis on two doctrines of

administrative law for which the application of “presidential administration” could be judicially

recognized; namely, the non-delegation doctrine and judicial review of agency action.

The Non-Delegation Doctrine

The non-delegation doctrine is a separation of powers principle that serves to preserve the

“integrity and maintenance of the system of government ordained by the Constitution.” 98

Pursuant to the concept of non-delegation, Congress cannot delegate general legislative authority

to another coordinate branch of government. The Supreme Court, however, has invalidated

congressionally delegated grants of authority only twice. 99 In both instances it was determined

796 F.2d 1479 (D.C. Cir. 1986).

Id. at 1505.

Id. at 1507.

Kagan, supra note 1, at 2364 (stating that “recognition of this potential would support a body of doctrine granting

preferred status to administrative action infused in the appropriate way with presidential authority, and thereby

promoting this kind of presidential involvement”).

Field v. Clark, 143 U.S. 649, 692 (1892); see also, Mistretta v. United States, 488 U.S. 361, 371-372 (1988).

See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schecter Poultry Corp. v. United States, 295 U.S.

495 (1935).

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

that Congress had improperly delegated its Article I legislative power to the executive branch by

imbuing it with the ability to make unfettered law and policy decisions.100 Since 1935 and despite

the concept of non-delegation, the Court has—largely because of the practical requirements of

modern government—granted broad power to Congress to delegate legislative authority to the

coordinate branches where Congress establishes “by legislative act an intelligible principle to

which the person or body authorized to [exercise delegated authority] is directed to conform

....”101

Because of Congress’s ability to delegate power under broad standards, legal concern over

legislative grants of authority does not focus simply on the act of delegation, but rather hinges on

congressional abdication of core legislative functions. 102 Thus, the practical effect of the

intelligible principle maxim is to require that Congress, not the delegee, render the underlying

policy decision and delineate reasonable legal standards for its enforcement, thereby avoiding

separation of powers conflicts.103

Professor Kagan’s analysis and application of the non-delegation doctrine starts with an

observation that the doctrine has been applied only when Congress has delegated power directly

to the President.104 In other words, the only decisions by the Court which have struck down a

federal statute for violation of the non-delegation doctrine have occurred when Congress

delegated lawmaking authority directly to the President of the United States.105 Properly

understood, Professor Kagan asserts that the non-delegation doctrine is a government

accountability principle and, as such, “should welcome active and open presidential involvement

in administration, whether pursuant to a direct delegation or superimposed on a delegation to an

agency official.”106 Phrased another way, Professor Kagan posits that courts, when reviewing

congressional delegations, should grant maximum protection from non-delegation challenges

when the agency action is taken with the full imprimatur and authority of the President.107 Rather

than presuming, as the Supreme Court appears to have done to date, that delegations of

congressional authority to the President are violations of the non-delegation doctrine, Professor

Kagan asserts the opposite. She argues that her version of “presidential administration” provides

for greater accountability, increased transparency, and is more consistent with democratic values

than traditional bureaucratic decision-making mechanisms; therefore, the concerns of the nondelegation principle should not apply to delegations to the President, or where the President is

actively involved in the decision-making process. 108

100

See id.

See id. at 373; see also J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).

102

Panama Refining Co., 293 U.S. at 415.

103

See Mistretta, 488 U.S. at, 371-375. The Court has recognized the ability of a delegee agency to formulate the

necessary intelligible principle, or guiding, confining, standard if Congress has not done so itself in the enabling

legislation. See, e.g., Lichter v. United States, 334 U.S. 742 (1948).

104

Kagan, supra note 1, at 2364 (stating that the “Supreme Court has applied the doctrine only when Congress has

delegated power directly to the President—never when Congress has delegated power to agency officials.”).

105

Id. at 2364-365.

106

Id. at 2365.

107

Id. at 2369.

108

See id.

101

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Judicial Review of Agency Action

Recognizing that non-delegation cases before the courts are rare, Professor Kagan turns her

attention to applying her theory of “presidential administration” to an area where the judiciary has

been quite active, namely, the judicial review of agency action. Noting that there are two types of

judicial review—review of agency legal conclusions under Chevron U.S.A., Inc. v. Natural

Resources Defense Council (Chevron)109and review of agency decision-making processes under

the “hard look” doctrine as espoused by Motor Vehicle Manufacturers Ass’n of the United States

v. State Farm Mutual Automobile Insurance Co. (State Farm)110—Professor Kagan proposes that

a “sounder version of both these doctrines … would take unapologetic account of the extent of

presidential involvement in administrative decisions in determining the level of deference to

which they are entitled.”111

In Chevron, the Supreme Court established a two-part test for judicial review of agency statutory

interpretations. First, a reviewing court must first determine “whether Congress has directly

spoken to the precise question at issue.”112 If a court finds that there has been an express

congressional statement, the inquiry is concluded, as the court “must give effect to the

unambiguously expressed intent of Congress.”113 In the event that Congress has not

unequivocally addressed the issue, a reviewing court must respect an agency’s interpretation, so

long as it is permissible. 114 The Court further stated that

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of

authority to that agency to elucidate a specific provision of the statute by regulation ...

Sometimes the legislative delegation to an agency on a particular question is implicit rather

than explicit. In such a case, a court may not substitute its own construction of a statutory

115

provision for a reasonable interpretation made by the administrator of an agency.

The Court went on to note that “[j]udges are not experts in the [technical] field, and are not part

of either political branch of the Government,” while agencies, as part of the executive branch,

appropriately make “policy choices–resolving the competing interests which Congress itself

either inadvertently did not resolve, or intentionally left to be resolved by the agency charged

with the administration of the statute in light of everyday realities.”116 Thus, the rationale for this

deference is predicated upon the notion that it is not the role of the judiciary to “assess the

wisdom” of policy choices and resolve the “struggle between competing views of the public

109

467 U.S. 837 (1984). For a more detailed discussion of Chevron than is provided here, see CRS Report R41260, The

Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine, by (name redacted).

110

463 U.S. 29 (1983).

111

Kagan, supra note 1, at 2372.

112

Chevron, 467 U.S. at 842.

113

Id. at 843.

114

See INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).

115

Chevron, 467 U.S. at 843-44.

116

Chevron, 467 U.S. at 865. In Cablevision Sys. Dev. v. Motion Picture Ass’n, 836 F.2d 599, 608-609 (D.C. Cir.

1988), the court noted that, “Chevron’s rationale for deference is based on more than agency expertise.” Elaborating,

the court stated: “Like the Court in Chevron, we are faced with several interpretations of ambiguous language which

really involve competing policies among which Congress did not explicitly choose. We see no reason to deny the

interpretation selected is reasonable.” Id. at 609.

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

interest,” as well as an agency’s greater expertise regarding the subject matter of the

regulations.117

Professor Kagan notes that courts in applying Chevron have completely ignored the role of the

President in the administrative process, granting deference to agency regulations “irrespective of

whether the President potentially could, or actually did, direct or otherwise participate in their

promulgation.”118 In her view, this oversight by the judiciary is inconsistent with Chevron’s

primary rationale. According to Professor Kagan, Chevron deference flows from political

accountability, which is greatest when the President is exercising control over the various

appendages of the executive branch.119 Thus, Kagan concludes that a proper application of

Chevron would be one that promotes “actual[,] rather than assumed[,] presidential control over

administrative action.”120 As Professor Kagan notes, one potential consequence of such an

application of Chevron, would be a weakening of deference afforded to the independent agencies.

This conclusion logically follows because, by their very design, independent agencies are

insulated from presidential control and, thus, the President cannot and does not participate in their

decision making to the level necessary under Professor Kagan’s theory to justify application of

Chevron deference. In other words, under Professor Kagan’s formulation “courts could apply

Chevron when, but only when, presidential involvement rises to a certain level of substantiality,

as manifested in executive orders and directives, rulemaking records, and other objective indicia

of decisionmaking processes.”121

Review of an agency’s decision-making processes is performed not under Chevron, but rather

pursuant to the “hard look doctrine.” The doctrine was adopted by the Court in State Farm, which

reviewed a decision by the Secretary of Transportation to rescind a rule issued by a prior

administration requiring new cars to be equipped with automatic seatbelts or airbags. This

decision was based on the agency’s determination that the rule would be ineffective due to the

ability of customers to simply detach the automatic seatbelts. The Court began its analysis of the

agency’s decision by determining that arbitrary and capricious review was appropriate, and that

such review is “narrow and a court is not to substitute its judgment for that of the agency.”122 The

Court then went on to state,

117

Chevron, 467 U.S. at 866; Rust v. Sullivan, 500 U.S. 173, 187 (1991). It should be mentioned that the Supreme

Court revisited Chevron in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), declaring that the Food

& Drug Administration lacks jurisdictional authority to regulate tobacco products. In reaching this determination, the

Court discussed the first prong of Chevron, declaring that the proper analysis is to focus not only on the statutory

clause, but rather to consider the structure, function, and history of all relevant provisions, interpreting a statute “as a

symmetrical and coherent regulatory scheme.” Id. at 133. Upon concluding that Congress “squarely rejected proposals

to give the FDA jurisdiction over tobacco,” the Court stated that it was “obliged to defer not to the agency’s expansive

construction of the statute, but to Congress’[s] consistent judgment to deny the FDA this power.” Id. at 160. This

reasoning centers on an analysis of the unique regulatory scheme created for tobacco products under the first prong of

the Chevron test, and, as such, does not appear to impact the traditional inquiry as it applies to the issue at hand. The

Supreme Court further clarified the limits of the Chevron standard in United States v. Mead Corp., 533 U.S. 218, 229

(2001), ruling that deference applies only in instances when Congress has delegated authority to an agency to make

rules carrying the force of law, and when the agency interpretation claiming deference was promulgated pursuant to

that authority.

118

Kagan, supra note 1, at 2375.

119

Id. at 2376.

120

Id.

121

Id. at 2377.

122

State Farm, 463 U.S. at 43.

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

Normally, an agency rule would be arbitrary and capricious if the agency has relied on

factors which Congress has not intended it to consider, entirely failed to consider an

important aspect of the problem, offered an explanation for its decision that runs counter to

the evidence before the agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.123

Applying this standard, the Court rejected the agency’s action for two reasons. First, the Court

found that the agency had failed to consider the possibility that inertia would have caused a

substantial number of people to leave the seatbelts attached. 124 Additionally, the Court found it

significant that the Department of Transportation had failed to explain why it did not consider

implementing a mandatory airbag or non-detachable restraint option. 125 Given these omissions,

the Court held that the agency had “failed to offer the rational connection between facts and

judgment required to pass muster under the arbitrary and capricious standard.”126 Finally, while

noting that an “agency’s view of what is in the public interest may change, either with or without

a change in circumstances,” the Court stressed that “an agency changing its course must supply a

reasoned analysis” for such a change. 127 Holding that “the agency has failed to supply the

requisite ‘reasoned analysis’ in this case,” the Court remanded the matter to the agency for further

consideration.128

Like Chevron, the “hard look doctrine” developed in State Farm arguably ignores presidential

involvement in the agency’s process. Professor Kagan’s proposed revision to the doctrine would

“promote an alternative vision centered on the political leadership and accountability provided by

the President.”129 This change would be implemented by reducing the rigors of the “hard look”

analysis when evidence is presented to the reviewing court that the President has taken an active

role and assumed responsibility for the administrative decision in question.130 Professor Kagan

does not merely suggest that any evidence will require such a reduction in the level of scrutiny,

rather, she posits a standard for evidence of presidential involvement and responsibility.

Specifically, if presidential policy is to be sufficient to sustain administrative action, “the relevant

actors should have to disclose publicly and in advance the contribution of this policy to the

action—in the same way and for the same reasons that they must disclose the other bases for an

administrative decision to receive judicial credit.”131

Unlike the issues raised by executive-legislative disputes, which are rarely the subject of judicial

review, the changes to administrative law doctrines proposed by Professor Kagan potentially

provide some insight as to how a prospective Justice Kagan would approach issues that are likely

to come before the Supreme Court. Arguably, should the application of Chevron proposed by

Professor Kagan be adopted, it may result in fewer administrative actions being entitled to

deference from the courts. In addition, such an application could potentially mean that a greater

123

Id. at 43.

Id. at 54.

125

Id. at 55-56.

126

Id. at 56.

127

Id. at 57 (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970), cert. denied, 403

U.S. 923 (1971)).

128

Id. at 57.

129

Kagan, supra note 1, at 2380.

130

See id.

131

Id. at 2382.

124

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Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

number of regulatory agencies will look to the President for not only directives and guidance, but

also to ensure that their decisions receive deferential treatment from the judiciary when

challenged. Similarly, it might be argued that should a future Justice Kagan convince a majority

of the Court to adopt her version of the “hard look doctrine,” the result could potentially be a

substantial reduction in the number of administrative decisions rejected and remanded by the

judiciary.

This combination of reduced judicial review and increased presidential involvement in

administrative decision making may be of concern to those who believe that independent, expertbased decision making subject to strong judicial review is what Congress intends when delegating

authority to administrative agencies. Conversely, it appears possible to argue that the combination

of increased executive influence and reduced scrutiny by the judiciary will greatly reduce

administrative ossification, thereby freeing the administrative agencies to act more quickly and

more decisively to address pressing regulatory needs.

Presidential Administration, Foreign Affairs, and

National Security

Despite its length, Professor Kagan’s Presidential Administration is silent with respect to the

authority of the President regarding the conduct of foreign affairs and national security. Written

prior to September 11, 2001, and focusing largely on the success of the Clinton Administration

with regards to domestic policy initiatives, it is difficult to ascertain from the text of the article

itself what, if any, views Kagan holds on national security and foreign affairs related issues such

as detention, surveillance, interrogation, and rendition. Although there is arguably some overlap

between her theory of presidential power and arguments that have been advanced in the areas of

foreign affairs and national security, the legal questions involve and implicate clauses in the

Constitution and lines of Supreme Court cases that are not addressed or discussed by Professor

Kagan in Presidential Administration.

That said, Kagan’s views of executive power generally have led some scholars and commentators

to speculate on what those views might be. Criticism of Kagan’s views of executive power have

come from both the progressive and conservative ends of the political spectrum, and are not

always limited to the views and analysis expressed in Presidential Administration. From the

progressive point of view, it has been suggested that Professor Kagan’s embrace of certain parts

of the “unitary theory of the executive,” necessarily leads to a strong view of presidential power

and, therefore, could be used to justify positions similar to those taken by the administration of

George W. Bush.132 Conversely, some conservative writers have criticized Kagan’s article for not

accepting in its entirety the precepts of the “unitary theory of the executive.” Specifically,

commentators have noted Kagan’s express rejection of the theory that the Constitution mandates

a unitary executive by permitting the unfettered removal of officers and officials. 133 For strong

132

See, e.g., Neal K. Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch From Within,

115 YALE L.J. 2314, 2343-345 (2006) (stating that “luminaries such as Elena Kagan celebrating presidential

administration and unitary executives explaining why such theories are part of our constitutional design. This vision

may work in eras of divided government, but it fails to control power the rest of the time”).

133

See supra, notes 91-93 and accompanying text.

Congressional Research Service

Supreme Court Nominee Elena Kagan: Presidential Authority & the Separation of Powers

unitarian supporters, Professor Kagan’s failure to fully accept these unitarian principles calls into

question her acceptance of all the President’s powers.134

Conclusion

In sum, Presidential Administration presents a complex and multifaceted view of executivecongressional relations focused exclusively on domestic policy. Using the case law, arguments,

and structures of both the traditional and “unitary theory of the executive” views, Professor

Kagan articulates a view of executive power that envisions strong personal involvement by the

President and the White House in the policy decisions and actions of administrative agencies.

While arguably, Professor Kagan’s theory is favorable to the executive branch, it nevertheless

permits Congress to continue to develop and delegate executive functions to independent

agencies that remain beyond the scope and control of the President. Furthermore, as recognized

by the article, Professor Kagan’s theory has some significant real world legal consequences,

specifically with respect to administrative law, that may come before the Supreme Court.

Whether, and to what extent, the theories and ideas presented in an academic paper like

Presidential Administration inform her potential decision making as a Supreme Court Justice on

issues related to foreign affairs and national security, however, remains to be seen.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

134

See, e.g., John Yoo, An Executive Without Much Privilege, N.Y. Times, May 26, 2010, at A23 (stating “[i]f Elena

Kagan will not even permit presidents this small constitutional right, who can doubt that she will reject executive

powers of greater consequence?”).

Congressional Research Service

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