Myths and falsehoods about Elena Kagan's Supreme Court nomination
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Myth: Kagan's record shows that she will rubber-stamp war-on-terror policies
CLAIM: Kagan's actions as solicitor general and an article she wrote as a professor show that she will give great deference to the president on national security issues. Referring to a law-review article written by Kagan and her record as solicitor general, Whelan wrote that a New York Times article presents concerns "Kagan 'may lean too far toward the middle.' Those concerns (and the corresponding hopes from some conservatives) may well be warranted on national-security issues and executive power more generally." Politico's Mike Allen has also suggested that Kagan may be attacked for being too deferential to presidential power on national security issues.
REALITY: Kagan's article dealt with domestic issues, not national security, and her actions as solicitor general do not show that she would take an expansive view of the president's national security powers. Kagan's article dealt with a president's power to direct administrative agencies and did not claim, as the Bush administration had, that the president had inherent power to act unilaterally on national security matters. Furthermore, Kagan's arguments in favor of the government's national security positions as solicitor general do not indicate that she would take an expansive view of the president's national security powers as a Supreme Court justice. As she has stated, her duty as solicitor general was to represent the federal government in court and defend federal laws whether or not she agreed with them. As a justice, her role would be to decide whether the federal government's actions are justified under the Constitution and federal laws.
FACT: In her article on "presidential administration," Kagan dealt with a president's power to control the executive branch bureaucracy. Kagan's article dealt with "the presidentialization of administration -- the emergence of enhanced methods of presidential control over the regulatory state." She summed up her views as follows:
I have argued here that this development, within broad but certain limits, both satisfies legal requirements and promotes the values of administrative accountability and effectiveness. Presidential administration as most recently practiced -- including, most controversially, the use of directive authority over executive branch agencies -- comports with law not because, as some have claimed, the Constitution commands straight-line control of the administrative state, but because, contrary to prevailing wisdom, Congress generally has declined to preclude the President from controlling administration in this manner.
FACT: In her article, Kagan did not even mention president's war powers or national security powers. At no point during her article did Kagan even discuss the president's national security or war powers.
FACT: In her article, Kagan specifically rejected the "unitary executive" concept that Congress cannot limit a president's power. In her article, Kagan specifically rejected the "unitary executive" that former Vice President Dick Cheney's aide David Addington, "torture memo" author John Yoo, and others in the Bush administration advanced in order to justify their national security agenda in the absence of -- or even in contravention of -- statutory direction from Congress. Kagan wrote: "I accept here the rudiments of the constitutional argument; more specifically, unlike the unitarians, I acknowledge that Congress generally may grant discretion to agency officials alone and that when Congress has done so, the President must respect the limits of this delegation." Kagan also wrote:
The unitarians would defend the practice simply by insisting, against the weight of precedent, that the Constitution provides the President with plenary authority over administration, so that Congress can no more interfere with the President's directive authority than with his removal power. I too defend the practice, but not on this basis. I accept Congress's broad power to insulate administrative activity from the President, but argue here that Congress has left more power in presidential hands than generally is recognized. More particularly, 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.
FACT: Kagan stated that as solicitor general, she would defend federal laws and actions as long as there was a reasonable basis for them. In response to a written question from Sen. Charles Grassley (R-IA), Kagan stated: "As Solicitor General, my function would be to advance the interests of the United States, and the interests of the United States call for the defense of federal statutes against constitutional challenge whenever there is a reasonable basis for doing so."
FACT: As a justice, Kagan's role would be to decide whether a government action was legal, not whether there was a reasonable basis for it. The Supreme Court, of course, often disagrees with the solicitor general's defense of the federal government's actions, as it did in numerous national security cases during the Bush administration, including in the 2004 cases of Hamdi v. Rumsfeld and Rasul v. Bush, the 2006 case of Hamdan v. Rumsfeld, and the 2008 case of Boumediene v. Bush.
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MORE HERE -
http://mediamatters.org/research/201005100001
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