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While most Republicans wring their hands in anguish over the nomination of former Harvard Law School Dean Elena Kagan as a Supreme
Court justice to replace Justice Stevens, I shout for joy. Why, you may
ask? Because she and I believe many of the same things about
administrative law. Here are 10:
1. She calls the administrative state in the United States "The Administrative State." See. 114 Harv. L. Rev. 2245.
While most Americans don't realize it yet, democracy in the United States is a quaint but outdated concept which has been effectively
replaced by government by administrative agency. You don't believe me?
Ask yourselves this question: Which Congressmen and Senators voted for
cap and trade? Can you name one? No. Do you know why? Because cap and
trade was enacted by doing an "end run" around Congress. If it fails,
no Congressman or Senator need take the blame because it was never
passed by them.
How did cap and trade get passed? The EPA did it. The Supreme Court ordered the EPA to regulate carbon dioxide and the EPA did it. It is that simple.
I recently asked a roomful of Constitutional lawyers at a meeting of the American Society of Law Schools in New Orleans if they were at all
concerned about the EPA massively changing the entire U.S. economy
without a single vote by Congress and the response was "No, we're
comfortable with the New Deal."
That's it. Congress is irrelevant. Power is held by administrative agencies, and you, the citizen, need to just accept that.
Elena Kagan sees danger there. She calls this belief, and the government it has created, "The Administrative State." The first step
in fixing a problem is to identify it, and give it a name. She does
2. Elena Kagan wants administrative agencies to be accountable to the President.
Elena Kagan and I have different views on whether or not regulation is good or bad for the country, but we agree on the fact that the
people's choice of a President should be reflected in the decisions
that administrative agencies make. Kagan points out that before Reagan,
"Presidents historically had shunned direct intervention in rulemaking
and had been loath to let it appear that they were influencing
regulatory agencies." Her view and mine is that if people vote for a
President who promises to reduce the size and scope of government, they
should get it. On the reverse side, if they vote for more government,
they should get that as well.
3. Elena Kagan supports the nondelegation doctrine.
Now, this may get a little dense, but let me try to make it easier. Congress delegates authority to an agency like the EPA. When it does, the EPA is only supposed to do what it has been delegated to do.
As those of us who study and teach administrative law know, agencies take on a life of their own. Soon they become like kudzu, growing where
you don't want them, choking out everything in their paths, and
dominating the landscape. The nondelegation doctrine is supposed to
limit the growth of government, but it hasn't. "As Cass Sunstein
[Obama's regulatory czar] wrote one year ago [in 2000], the
nondelegation doctrine "has had one good year , and 211 bad ones
Kagan's view is "enhanced presidential control of administration becomes a political substitute for the nondelegation doctrine,
pressuring Congress to take increased responsibility for initial policy
choices, but without relying on judicial intervention." In other words,
Congress needs to be reinvigorated into taking control of the
Administrative State because if it doesn't, the President will.
4. Kagan realizes that Congress has gotten too weak.
Kagan says "we live today in an era of presidential administration." By that she means that "the history of the American administrative
state is the history of competition among different entities for
control of its policies." At this particular time, the President is
strong and Congress is weak. Government needs to find ways to re-engage
Congress, and hence the American people, in the process of government.
5. Government is unresponsive to the public will because Congress is weak.
Kagan says it much more politely when she say "as earlier suggested, Congress's institutional structure and incentives - its difficulty in
transcending collective action problems, its use of the committee
system, its reliance on fire alarm mechanisms of oversight, and its
recognition that the public usually will accord it neither credit nor
blame for agency action - all prevent it from dealing with
administration in the focused and proactive way necessary to energize
regulatory policy. Alone among the actors competing for control over
the federal bureaucracy, the President has the ability to effect
comprehensive, coherent change in administrative policymaking."
6. Independent agencies are (potentially) unconstitutional because they respond to neither the will of the President, nor the will of Congress.
I am not saying that Kagan supports making all the independent agencies (FCC, FTC, FMC, etc.) part of the Executive Branch, like I do,
but she at least recognizes that there is no constitutional authority
for the existence of these agencies, and that they are too insulated
from the will of the people, from the political process, to be
responsive to our democratic form of government.
She says "the conventional view further posits, although no court has ever decided the matter, that by virtue of this power, Congress can
insulate discretionary decisions of even removable (that is, executive
branch) officials from presidential dictation - and, indeed, that
Congress has done so whenever (as is usual) it has delegated power not
to the President, but to a specified agency official." She favors
accountability and control of the actions of independent agencies by
As importantly, she favors Presidential control over executive branch officers who have been delegated power by Congress as a means of
by-passing the President. She says: "I argue that a statutory
delegation to an executive agency official - although not to an
independent agency head - usually should be read as allowing the
President to assert directive authority, as Clinton did, over the
exercise of the delegated discretion." I agree.
7. Kagan supports re-examing the Chevron Doctrine
"The task for post-Chevron courts, on this view, would involve developing doctrine that recognizes, and thereby promotes, actual
rather than assumed presidential control over administrative action."
In other words, where the president has developed a policy, those
policy choices will be granted some deference.
How would this work in practice? Regarding greenhouse gases, the Bush Administration had developed a policy. Whether you agreed with it
or not, the policy was that carbon dioxide was not what Congress had in
mind when it passed the Clean Air Act, if Congress wants to address
carbon dioxide as a source of global warming, that is a legislative
issue which it needs to debate and legislate on, and it is not up to
the EPA to do an "end run" around democracy simply because global
warming is an important worldwide problem.
I predict that if Kagan had been on the Court at the time that the global warming baton was taken from Congress and handed to the EPA, she would have voted for democracy.
8. Kagan thinks there is hope for Congress (I think she does, anyway) and that "government by the people, of the people, and for the people" will not vanish from the face of the earth.
Kagan points out that the courts have justified Congress' weakness saying in Mistretta v. United States, 488 U.S. 361, 372 (1989) "Our
jurisprudence has been driven by a practical understanding that in our
increasingly complex society, ... Congress simply cannot do its job
absent an ability to delegate power under broad general directives."
However, "the number of "significant" bills passed by Congress remained
roughly the same in periods of divided government as in periods of
one-party rule." Hence, Congress has the ability to "step to the plate"
even if it has not done so in the past few years.
9. Kagan supports Presidential input into the rulemaking process.
She says "the APA contains no prohibitions on ex parte contacts between agency personnel and outside persons in notice-and-comment
rulemaking, but courts sometimes have required agencies to include
summaries of significant contacts in the rulemaking record." The
overall tenor of her article seems to support this type of Presidential
10. Kagan support clear lines of accountability
She endorses the view that we should "cut through the barriers that have in many cases made bureaus and agencies practically independent of
the Chief Executive...and...create a clear line of command from the top
to the bottom, and a return line of responsibility and accountability
from the bottom to the top."
I am for her.
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