Kagan and Presidential Power

The Kagan nomination hearings have begun and while much of the media attention has focused on the politics of the hearings (while acknowledging that her confirmation is a foregone conclusion)--her stance on banning military recruitment while at Harvard or her comments regarding what a farce these hearings are in the first place--and very little on her views about presidential power. In fact, for Democrats--who got so agitated over the issue of presidential power in the Bush administration, they really should be concerned about Kagan's views on the issue of separation of powers and presidential influence of the regulatory process because she will join Alito, Scalia, Robert, and Thomas as a fifth justice in favor of a powerful, unitary executive. How do we know this?

In fact, her views are clearly laid out in her 2001 Harvard Law Review article, "Presidential Administration." The problem is legal scholars, members of the press, members of Congress, and analysts for the Congressional Research Service do not see her views for what they are--Unitarian. The last one is particularly troubling since it is supposed to clarify issues for Congress in the not for public consumption reports it issues on behalf of congresspersons.

The Congressional Research Service issues reports to members of Congress--at taxpayers expense--but will not make them available to the public. Fortunately groups like the Federation of American Scientists archive these reports and make them available for free to anyone with Internet access. In this particular report, CRS analyst Todd Tatelman takes on the issue of presidential power and Kagan's views a la "Presidential Administration." In the end, he confuses and misinforms.

First, and I may be a bit biased in this account, he does not refer to any work by a political scientist when he discusses either presidential power theories or the unitary executive theory in particular. Second, his overview of the unitary executive theory isn't right, which largely comes from a failure to review the literature on the unitary executive. And finally, he accepted at face value Kagan's thesis that the Clinton administration's approach to rulemaking was anti-unitarian.

First, because he does not consult political scientists--and since he himself is trained as a legal scholar--he doesn't have any ideal on the major theories of presidential power. In fact, he reduces--much the way Kagan did--presidential power theories into three camps--the "traditionalists," the "unitarians," and then Kagan's "administration." The traditionalists are nothing more than Howard Taft's "Stewardship" theory of power, where the president is left to carrying out the specific powers granted to him by Article II and nothing more. This theory was influential among academics through much of the 20th century. But its influence came to an end in 1960, with the publication of Presidential Power. Neustadt's theory, which still dominates the thinking of presidency scholars in political science and history, argued that the constitutional powers are not as important as what the individual brings to the office. There, the presidency succeeds and fails on the shoulders of the man behind the desk. His credibility, his reputation, his ability to influence others to do what he wants to get done is how the presidency works. Those needing persuading include the Congress, the press, interest groups, the American public, foreign leaders--everyone and anyone. Thus this view of power, to no surprise, places the president at the center of the political system. Ask any individual in America today who the most important political leader is, and they will tell you it is the president. The media certainly believe it in the sheer volume of coverage devoted to the man and the institution. The flaw in the theory, of course, is its focus on the individual in the Oval Office and not to the institution, that gets built by the contributions of those who came before.

So in Tatelman's introductory discussion of theories of power, he overlooks the "Grand Canyon" simply because he didn't know it was there.

Second, he fails to provide an accurate description of the tenets of the unitary executive theory--something that also likely happened because of his failure to adequately review the literature. As Tatelman argues, unitarians "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 directive; 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."

OK, to the layperson, this may seem obtuse, but if you read it carefully, you may be scratching your head that each of the three prongs were pretty much the same. How can a paradigm of presidential power not differentiate its tenets? If he would have looked at my dissertation, for instance, he would have found my distillation of the three tenets of the theory taken from a review of the literature from legal scholars who built it in the late 1980s and early 1990s. As I argued, the three tenets are as follows: First, the president has the prerogative to remove subordinate officials without interference from Congress. While Congress (specifically the Senate) may have a say in who gets confirmed, they do not get to interfere in who gets fired. In fact, the only potential check on this first tenet comes from the politics of the moment and the president's standing with the public. For example, from a constitutional standpoint, President Bush was in his right to fire the federal prosecutors after the 2004 election. The politics of the moment, however, made the firing a disaster to his ability to govern, and in the end reduced the President's standing with the public and with members of his own Party. Second, the president--along with the vice-president--is the only elected individuals in the Executive Branch. As such, they are politically accountable for the decisions made by the bureaucrats. Thus unitarians believe that it is the president's prerogative to control the execution of discretionary decision making. Since the Constitution "vests" to the president the "executive power," it is his--and not a bureaucrats--right to a final say. The vesting clause is also something I wish to address below, because Tatelman completely missed the point of its importance to unitarians. And finally, third, the "Oath clause" of the Constitution commands the president to protect and defend not just his Office but also the Constitution of the United States. This means he is bound by oath to refuse enforcement of anything he believes is unconstitutional. In Tatelman's discussion of the important clauses of Article II to unitarians, he mentions the "Vesting" clause and the "Take Care" clause, but not the "Oath" clause. Now of course the Constitution gives the president weapons like the veto to do just this, but because the Constitution vests all the executive power to the president, it means that he is afforded tools not specifically mentioned by the Constitution--tools such as the signing statement. The signing statement gives the president the option to "save" an important piece of legislation by refusing defense or enforcement of a provision that violates the Constitution. Take my favorite example--FDR is given an important military spending bill during WWII, but the bill contains a provision that places guilt upon employees of the State Department--a so-called "bill of attainder." Since it is an important spending bill, FDR is boxed into a difficult position--does he veto it and perhaps place the free World in jeopardy, or does he enforce it but hold off on the provision throwing the State Department employees in jail? He did the latter, and the Supreme Court stood by him.

The unitarians place a great deal of importance on three clauses of Article II, as mentioned above. The "Oath" clause, which I just discussed. Second is the "Take Care" clause, which requires the president to "take care that the laws are faithfully executed." This is important because it gives the president the constitutional authority to oversee the manner in which any executive officer executes the law--including those we call the "Independents"--members of the independent regulatory agencies and commissions such as the FCC or the SEC. And then finally there is the "Vesting" clause. Tatelman, as noted above, totally misreads why unitarians think this clause--which can be found in each of the first three Articles of the Constitution--is so important. He writes that the clause is "best read and most properly understood to be a general grant of power to the President. 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. (emphasis mine)" But they are not identical, which is why unitarians find it so important. If you look to the "Vesting" clause of Article I, it says that the "legislative power herein granted shall be vested in a Congress..." In Article III, it says that the "judicial power shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." Now in Article II is simply says that the "executive power shall be vested in a President of the United States." See the difference? In Article I, it limits the legislative power to those provisions laid out specifically and deliberately in Article I. In Article III, it dilutes the judicial power by dividing it between the Supreme Court and the inferior courts created by the Congress. But the president has ALL the executive power, which for unitarians means those powers specified in Article II and those executive powers outside, including those called "prerogative powers." Had Tatelman done a careful reading of the literature on the unitary executive, this point would have hit him like a heavy object. But since he missed it so badly, at least for me, it threw the rest of the analysis into doubt, and for good reason.

Finally, there is his reading of Kagan's thesis and his willingness to believe that she articulates a theory distinct from the unitary executive theory. Tatelman believes Kagan that Clinton exercised a different kind of influence over the bureaucracy than his Republican predecessors, which makes him un-unitarian.

In my dissertation, I walk the reader through the institutionalization of presidential influence over rulemaking that started with the Reagan administration and continued through the Clinton administration, and how it tied to the unitary executive theory. I will summarize that here and explain where Tatelman's analysis falters. The Reagan administration used two important executive orders (12,291 and 12,468) to gain influence over the bureaucracy by centralizing rulemaking oversight inside the OMB (the eyes and ears of the White House inside the bureaucracy) and by forcing agencies to submit their yearly regulatory agendas for (tacit) approval or disapproval by the White House. The Bush I administration continued with this process by empowering the vice president with a central role in controlling regulations. It was the intent of the Reagan and Bush I administrations to control the bureaucracy in an effort to throttle regulations that were deemed harmful to business or other important constituencies. Thus there influence was a negative influence. When the Clinton administration came to office, its rhetoric was about transparency in the regulatory process, but in practice it continued with its predecessors in exercising a high degree of influence within the bureaucracy. Clinton issued Executive Order 12, 866, which simply combined the Reagan orders and added, as a bonus, the requirement that the independent regulatory agencies and commissions submit their yearly regulatory agendas to the OMB (actually, to OIRA within OMB). Clinton did this while the Democrats controlled the Congress, so there was little to no reaction to the new order. When the Democrats lost control of the Congress in 1994, Clinton used the bureaucracy to "end-run" the Congress--to get things done administratively that he could not get done legislatively. This prompted the famous Begala quote, "Stroke of the Pen, Law of the Land. Kinda Cool." Kagan wrote of this authority: "When Congress delegates discretionary authority to an agency official, because that official is a subordinate of the President, it is so granting discretionary authority (unless otherwise specified) to the President." This is ripped right from the pages of unitarians--the president of the US has the authority to check the actions of bureaucrats as the top political person in the Executive Branch. Just because the president seeks to exercise positive influence over the bureaucracy, as Clinton did, does not make him different from his Republican, unitarian predecessors. The difference is one of degree, and not kind.

Thus to conclude, as I sit and watch the Senators with their opening remarks, I have heard no concern with the nominees views on presidential power. This was front and center just four years ago when the Senate Judiciary Committee considered the nomination of judge Samuel Alito, and it should be front and center today with nominee Elena Kagan.