Elena Kagan

Rumored potential Supreme Court pick Elena Kagan has advocated for an increased presidential role in regulation, which, she conceded, would make such affairs more and more an extension of the president’s own policy and political agenda.

Writing in the Duke University law journal on the issue of the presidential role in regulation, Vanderbilt law professor James Blustein quoted Kagan extensively regarding her views on the issue. Blustein himself was President George W. Bush’s pick to head the Office of Information and Regulatory Affairs, a position now filled by regulatory “czar” Cass Sunstein.

WND found that in his academic paper, Blustein quoted Kagan, formerly a senior member of President Clinton’s White House domestic-policy staff, asserting, “[W]e live today in an era of presidential administration,” an assertion that, she acknowledged, might be “jarring” or “puzzling” to some.

Kagan argued, “Presidential control of administration, in critical respects, expanded dramatically during the Clinton years, making the regulatory activity of the executive-branch agencies more and more an extension of the president’s own policy and political agenda.”

Kagan herself, writing in the Harvard Law Review in 2001, argued that an increased presidential role in regulation “both satisfies legal requirements and promotes the values of administrative accountability and effectiveness.”

Kagan is U.S. solicitor general, after being nominated by Obama in January and confirmed by the U.S. Senate in March. She was a dean of Harvard Law School and previously served alongside Obama as a professor of law at the University of Chicago.

A former clerk to Abner Mikva at the D.C. federal appeals court, Kagan was heavily involved in promoting the health-care policy of the Clinton administration. With the national debate raging on Obama’s new health-care law, many are speculating Kagan could be Obama’s pick for the country’s top court.

Kagan echoes controversial views of Cass Sunstein

Kagan’s views on presidential control of regulation seem to echo those of controversial regulatory “czar” Cass Sunstein, who went so far as to argue the interpretation of federal law should be made not by judges but by the beliefs and commitments of the U.S. president and those around him, WND reported.

“There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the president and those who operate under him,” argued Sunstein.

This statement was the central thesis of Sunstein’s 2006 Yale Law School paper, “Beyond Marbury: The Executive’s Power to Say What the Law Is.” The paper, in which he argues the president and his advisers should be the ones to interpret federal laws, was obtained and reviewed by WND.

Sunstein debated the precedent-setting 1803 case, Marbury v. Madison, which determined it is “emphatically the province and duty of the judicial department to say what the law is.”

He lamented multiple recent examples of U.S. presidents interpreting law only to have their interpretations overturned by the Supreme Court.

“Why is the executive not permitted to construe constitutional ambiguities as it sees fit?” asks Sunstein. “The simplest answer is that foxes are not permitted to guard henhouses … but who is the fox?”

He concludes, “The executive should usually be permitted to interpret (law) as it reasonably sees fit.”

“The allocation of law-interpreting power to the executive fits admirably well with the twentieth-century shift from common-law courts to regulatory administration if the governing statute is ambiguous,” he writes.

With additional research by Brenda J. Elliott

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