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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, May 12, 2010 ::
    Kagan: government power, not executive power (Lawrence Lessig wouldn't lie!)

    Day 3 of the Kagan debate seems to have shifted from her hardscrabble upbringing on the Upper West Side and the one-room schoolhouse at the elite Hunter College High School, a scholarship-only high school on the Upper East Side (those daily crosstown bus rides, omg!), plus the academic pressure of Princeton and Harvard Law -- all "real Americans" can relate to that -- seems to have shifted, as I said, to what views, exactly, she holds on executive power.

    Here is Professor Lawrence Lessig, assuring us that Kagan doesn't believe in executive power: she believes in federal government power in general, so you see, liberals need not worry. In the course of the piece (esp. where he quote from his own Maddow interview), he mangles -- imho -- the concept the unitary executive. Liberals frequently interpret "unitary" as "dictatorial." In fact it means, um, well, unitary, non-plural, rejecting the concept of an executive committee or of executive authority divided the way federal legislative authority is divided.

    Here is Lessig in his HuffPo piece:
    The distinction is between lawyers like Kagan who believe the president has broad power to control the executive branch because Congress (directly or indirectly) gave him that power, and others like Cheney who believe the president has broad power to control the executive branch because the Constitution (directly or indirectly) gave him that power. The critical word here is "broad": Everyone agrees that there is a core of executive authority that the constitution has vested in the president exclusively. The debate is how broadly that core extends.

    The difference between these two positions is critical. If you believe the Constitution gives the president absolute control over the administration, then there's nothing that Congress can do about it. But if you believe that it is Congress who has given the president this power, then Congress can take away what it has given.

    There is no ambiguity about what Kagan believes in this respect. As she wrote in her important 2001 piece, "Congress may limit the President's capacity to direct administrative officials... If Congress ... has stated its intent with respect to Presidential involvement, then that is the end of the matter." [Ellipses in original]
    But the Constitution doesn't say anything about a "core" of executive power, with executive power outside the "core" presumably subject to re-assignment by Congress. Art. II declares "vested" in the President "the executive power," which includes the power and duty "to take care that the laws be faithfully executed." Congress can control the President -- by changing the laws that it is the President's duty to execute. But not by isolating the President from some designated segment of the take-care duty and assigning that segment somewhere else.

    But I digress: that's what the Constitution says. We were talking about what Elana Kagan believes.

    It certainly seems that Kagan's views on executive power should alarm conservatives, not liberals. What some liberals take to be her expansive views on executive power are actually expansive views on federal power as a whole. Executive power as a subset of federal power, however, she deems to exist at the whim of Congress, contrary to constitutional text and discoverable original intent (the unitary executive having been chosen, over alternatives, by the Philadelphia Convention -- not "invented" by Ronald Reagan or Steve Calabresi).

    :: David M. Wagner 10:16 AM [+] ::

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