Kagan, a former Dean of Harvard Law School, held a job as a Clinton policy adviser and penned a telling article several years ago defending much of what many consider powers consistent with the unitary executive theory--though she did not come out and say as much.
On Friday, she was asked whether she would refuse defense of the law, as something each administration in the past has done at least on one occasion? Her answer: "I owe clear obligations to Congress...one of the most important parts of the solicitor general's job is to defend" the law. This would seem, as I suggested to Mr. Egelko, that perhaps Kagan used the talk to molify the anger amongst congressional Democrats over President Obama's recent signing statement. But there seems to be a bit of a contradiction, or perhaps a qualification, in Kagan's statement.
Over at dagblog, one blogger who also attended the conference provides a bit more detail. He also heard Kagan's praise of the legislative branch when asked about defending the law when the administration believes it to be unconstitutional:
Chief Judge Kozinski asked about the tension between Kagan's duties to the Executive branch, and to other agencies of the government. As she responded, her office owes an important obligation to the Legislative, in particular to defend the constitutionality of statutes, and the special historical relationship of the Solicitor General with the Supreme Court, redolent with such duties of candor that the SG is prone to confessions of error and other self-critical statements seldom passing the lips of lawyers. As she concluded this section of remarks, she made the point private lawyers will appreciate: her client is none of the branches or actors, but is instead the entire United States Government.
This appears to not only be a bone tossed in the direction of the Congress, but also a blunt statement where Kagan is making a break with the Bush Justice Department, which was so politicized that we are still dealing with the ramifications of actions taken years ago. Yet later in the proceedings, Ms. Kagan was asked about signing statements, and gave an answer that seemed to conflict with her first:
On to audience questions. Signing statements? Kagan initially picks at the question, because of the tension between her role as advocate for the Executive, acknowledging
that the topic is a hotly contested one. Finally, she answers frontally: when in conflict between the legislative goal of affirming the validity of legislation, and protection of the authority of the executive, the executive prevails in her office.
Whoa! Looking backwards, when was a solicitor general ordered to refuse defense of the law when the president believed it violated his personal politics and not the Constitution? In the cases that leap to my mind, never. FDR refused defense of a law demanding that three State Department officials be punished because the Congress did not like them--he believed that violated the Constitution's ban on bills of attainder and the Supreme Court agreed. Arguing on behalf of the law? Attorneys hired by the Congress. The Carter administration refused defense of any law it considered to be a legislative veto, which violated the Constitution's principles of bicameralism and presentment. And the Supreme Court agreed. Arguing on behalf of the law? Attorneys provided by the Congress. President Clinton refused defense of a law that kicked out of the military and pulled health care to any military personnel testing HIV-positive. Before that could be tested, the Congress overturned the law. The fact of the matter is that when the president refuses defense of the law--just like when he refuses enforcement--it is because he believes it violates a constitutional principle.
And I am sure Ms. Kagan knows it as well.
