Kagan, Presidential Power, the New York Times


I wanted to share my piece today in the New York Times, which argues that Elena Kagan is not the great friend of presidential power that her supporters claim. Her academic work praises Bill Clinton for taking the authority to issue regulations from the agencies (which are given that power by Congress) to enact what she calls progressive solutions to national problems. But she says it is not because of any power that the Constitution grants the President. Because of that, I argue that she would not recognize any powers of the President, under the Constitution, to wage the war beyond what Congress allows him — the common view in the academy, I must admit.

I must admit surprise that a) the New York Times would let me appear on its pages, except as a target (let me make clear, that being a moving target for the New York Times can be great fun) ; and b) that it would allow a criticism of her for not supporting presidential power. Thoughts?

There are 20 comments.

  1. Contributor

    Professor Yoo – Ever since I read your book Crisis and Command, I’ve had a list of questions I’ve been meaning to ask you about presidential power. Here goes the first set. You write in Crisis and Command:

    If allowing presidents to exercise their constitutional power freely risks executive abuse, it also brings with it the promise of flexibility and energy to meet national emergencies and crises. (423)

    John Adams introduced the Alien and Sedition Acts; during the Civil War, Lincoln suspended habeas corpus; during WWI, Wilson held certain Americans as political prisoners; and during WWII, FDR held Japanese-Americans in internment camps.

    Is there a discernible pattern in each of these instances? Which of these examples, if any, would you characterize as “executive abuse”? Do these instances represent a failure of the Constitution, a failure of the media, or a failure of the office of the executive, itself?

    • #1
    • May 27, 2010 at 1:19 am
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  2. Contributor
    John Yoo Post author

    First off, thanks for reading C&C! I’ve never thought that the Constitution guarantees good outcomes — it is not a “perfect Constitution.” Each branch can make mistakes in the use of its powers — witness Congress with health care, or the Supreme Court with . . . take your pick. That goes for Presidents too. To me, the question is how risk averse do you (as a framer of a Constitution) want to be? You could write a Constitution that protects against all of the examples you give, but it would come at the cost of hamstringing Presidents during periods of emergency. I think that the Framers thought that Congress was the real threat to individual liberty, and so wrote into the Constitution most of the strict limitations on the legislative power, rather than the executive, which they wanted to have flexibility to grapple with immediate emergencies and crises.

    • #2
    • May 27, 2010 at 1:51 am
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  3. Contributor
    John Yoo Post author

    On the exact crises that you list, I think that the Alien & Sedition Acts were really the fault of Congress. In fact, the first two wars under the Constitution — the Quasi War with France and the War of 1812, were serious mistakes (in my view) driven by a warlike Congress (there have been periods when the nation’s problem was aggressive Congresses, not Presidents). Adams’ fault was in not vetoing the law. Lincoln was right in suspending habeas corpus and refusing to obey Chief Justice Taney’s order to release Confederate spies and abettors. I think Wilson and FDR were mistaken (though FDR was supported by Congress and the Supreme Court), but I would not trade the mistakes for limitations on presidential power in wartime. Our hindsight shows those decisions to be errors, but we have to understand whether the cure might be worse.

    • #3
    • May 27, 2010 at 1:56 am
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  4. Contributor

    I see this strange picture in the margin, and am not sure that it is I, Richard Epstein, but needless to say that once I saw John Yoo’s article in the NYT, I knew that he would defend it here. And I think that John overstates the case against Elena on the issue of executive power. She was quite right to say that execution does not mean the ability to make law and that much of what the president does is subject to the powers of Congress. John is surely right to say that this does not include the ability to prevent the President from removing his department heads inside the executive branch. But it is most definitely the case that for about 75 years the power of removal did not extend to members of independent agencies. John’s views on presidential power are the most expansive in the nation. She is on this question more close to the mainstream. The inherent powers of the office may survive Congressional silence, but they are much truncated when Congress has spoken. Which is not to say that I like what they have to say.

    • #4
    • May 27, 2010 at 2:43 am
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  5. Contributor
    John Yoo Post author

    I agree with Richard — if indeed you have reached new heights of nattiness by wearing a fedora — that Kagan’s view on the independence of administrative agencies is the “mainstream.” Supreme Court opinions and most academics (I bet) agree that Congress can make agencies independent of presidential control. But I wonder what you think about the merits of this. As an original matter, it seems to me that the Constitution does not accommodate them within its simple three-branch framework of government. As a matter of consequences, would you think that independent agencies are a benefit for our constitutional order? As I share your libertarian leanings on domestic policy (not foreign), I think that independent agencies freed from the check of an executive who is democratically elected and accountable is a recipe for over-regulation and an intrusion into private civil society and the free markets.

    • #5
    • May 27, 2010 at 2:58 am
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  6. Member
    Richard Epstein: I see this strange picture in the margin, and am not sure that it is I, Richard Epstein… · May. 26 at 2:43pm

    I took the liberty of pulling a picture off the Web for you. Is this OK? I hope you like it!

    • #6
    • May 27, 2010 at 3:17 am
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  7. Contributor

    Prof. Epstein, I prefer you without the hat. But I have to agree with Prof Yoo. I don’t think the Constitution’s text (that poor forgotten creature) authorizes federal agencies that are independent of executive control. I don’t include something like the CBO, which is a mere arm of Congress and presumably exists to facilities Congress’s legislative function. But if a federal agency exists to implement some law or other, I would think that falls under “the executive power” which Article II vests in the President. Unlike Article I, Article II is not limited to the “powers granted herein” but rather “the executive power” — period.

    Can we at least agree that, when it comes to domestic affairs, President Obama appears to out-Yoo Yoo? What with new “czars” being created every day and every important initiative being run straight out of the West Wing, has there ever been a more control-freakish White House? Even NPR had to admit (in a story yesterday) that:

    Projects that the Bush and Clinton administrations might have entrusted to the departments of Justice, State or Defense are now centered at the White House instead. That’s true of national security policies, legislative initiatives and more.

    • #7
    • May 27, 2010 at 3:40 am
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  8. Contributor

    Magically my correct picture appears, and now to my views. There is little question that independent agencies were not part of the original constitutional scheme and could not be shoehorned in through the Necessary and Proper Clause. But Kagan was not writing a revolutionary article on that issue, only an observation about recent trends, so I think that it is not fair to hoist her on that particular petard. Her key point is a troublesome one that much aggrandizement takes place in the White House on matters for which, I fear there is only limited legislative authorization. Limited government is not the byword of the Obama administration.

    • #8
    • May 27, 2010 at 4:00 am
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  9. Contributor
    Adam Freedman: Can we at least agree that, when it comes to domestic affairs, President Obama appears to out-Yoo Yoo? What with new “czars” being created every day and every important initiative being run straight out of the West Wing, has there ever been a more control-freakish White House?

    Certainly not one more strangely aloof and disconnected. It’s a combination, as even our friends on the left are discovering, that takes on the appearance of whim at best and caprice at worst. Great power exercised with arbitrary intensity walks and talks like the duck of arbitrary power.

    But the Obama experience raises what I take to be the central question facing staunch defenders of executive power: how is the inertia of a muscular executive, over time, to be prevented from becoming pernicious? The current administration has effortlessly adopted the greatest of the prior administration’s favorite new powers — and seems entirely happy to let these be institutionalized for all time. Lincoln’s hope has been dashed, I think, that extraordinary powers would never outlast the crises behind them.

    • #9
    • May 27, 2010 at 6:15 am
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  10. Inactive

    My greatest fear onRicochet has come to pass! It is almost unfair to limit Professor Epstein and Professor Yoo to 200 words per post. I thoroughly enjoy your debates on the podcasts. A big thanks to both of you.

    • #10
    • May 27, 2010 at 7:07 am
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  11. Member

    What we are seeing here is a debate about how to manage the ever-growing beast that is a government far beyond what the framers envisioned. IMHO it is kind of silly to frame it in the Constitution, because most of it is outside of the Constitutional framework.

    In the Framers view, the Executive controls the military, foreign relations, and law enforcement, the Legislature creates the laws and funds the government, the Courts resolve conflicts, and the States deal with everything else. Nice and tidy, eh?

    Certainly, in the Framers model, the Executive is in charge of “execution” (i.e. action and implementation). But just as certainly, the 20th century expansion of Federal power is contrary to the principles of the Framers and to the explicit language of the Constitution, regardless of the branch of government is controlling it.

    Congress and the White House quibbling over a particular power is a pretty clear sign that **NEITHER** of them should have that power.

    • #11
    • May 27, 2010 at 8:09 am
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  12. Member

    Professor Yoo ..

    You brought up Justice Jackson, who argued one position as Attorney General and the voted the opposite direction on the Supreme Court. I presume you intended to underscore that government lawyers work for the government, and argue what their client tells them to argue rather than what they might believe.

    Does this fact shed any light on how we should examine the documents Ms. Kagan produced while working in the White House?

    For obvious reasons, you are in an interesting position to comment on this issue.

    • #12
    • May 27, 2010 at 8:20 am
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  13. Member

    The problem is less that the control freakish WH is there- every administration has compained about the same thing, wanted to push executive privilege, etc.

    The problem is that this Congress does not exercise its oversight role, for pure political reasons, and that the press does not report what it knows either (such as the Gibbs diatribe the other day telling them what to write about BP and the oil spill so that TVG won’t be blamed- and they mostly went along with it).

    The checks and balances don’t work when the Constitutionally-designated checkers bail out.

    • #13
    • May 27, 2010 at 8:46 am
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  14. Contributor

    Don’t worry, PatrickF — comments are 200 words max, but contributors’ conversation-starting posts can go as loooooooong as they want them to.

    • #14
    • May 28, 2010 at 8:18 am
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  15. Editor

    John, The New York Times linked to one of my articles today, too, prompting in me a similar puzzlement. As a rational person, I decided immediately to revise all my opinions about The New York Times. Excellent newspaper, I say; balanced reporting.

    • #15
    • May 28, 2010 at 8:42 am
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  16. Contributor
    John Yoo Post author

    How to control the President’s powers is a hard question. In Crisis and Command, I make the case that the bulk of the President’s powers were to be in foreign affairs, not domestic. Since the United States was so divorced from the rest of the world, this meant that the President’s powers would expand during emergencies, and then subside when the crisis was over. That was the pattern of American history until 1945 — after great exertions of presidential power in war, a fairly limited government returned with the peace (the Civil War and Reconstruction are followed by lasseiz-faire government, for example). Two things happened, in my view, that changed the normal pattern. From 1945 on, we entered a state of partial mobilization — we maintained large standing armies for the first time in American history — and project power throughout the world on a consistent basis. I find this to be legitimate. Second was the New Deal’s adoption of wartime mobilization to address the domestic problem of the Great Depression. That led to the permanent rise of presidential power at home. My view is that this is what truly distorted the Framers’ design (and didn’t solve the Depression either).

    • #16
    • May 29, 2010 at 2:15 am
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  17. Contributor
    John Yoo Post author

    I just remembered a great quote on the link between the growth of presidential power and the rise of the United States in the world. Tocqueville said (I assume that quoting the French on a website called Ricochet is de rigueur): “The Presidency of the United States possesses almost royal prerogatives, which he has no opportunity of exercising; and the privileges that he can at present use are very circumscribed. The laws allow him to be strong, but circumstances keep him weak.” But if the United States’ national security “were perpetually threatened, if its chief interests were daily in connection with those of other powers nations, the executive government would assume an increased importance.”

    • #17
    • May 29, 2010 at 2:16 am
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  18. Contributor
    John Yoo Post author

    Claire: I’m waiting to see how long the New York Times sticks by Obama. Maybe allowing some conservative authors on to their page is a sign that things may begin to turn. Sooner or later, as this administration produces more failures, even the Times will have to become a critic — which is their natural attitude toward those in power anyway/ They abandoned Bill Clinton when the evidence of reality became overwhelming. Surely, though, this is not the beginning of the end, but only the end of the beginning.

    On the other hand, maybe the Times’ view on political and economic matters is important now only to a small subset of the northeastern elites, and most of the people in the rest of the country who read the paper look to it for cultural criticism (like the recent article on how good soft pretzels are making a come back).

    • #18
    • May 29, 2010 at 2:22 am
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  19. Member

    As is so often the case, Tocqueville cuts to the heart of the matter — the argument today is that Islamic terrorism renders America “perpetually threatened.” Does this justify a perpetual expansion in the power of the executive, so that he or she is acting with extraordinary wartime powers forever after? A republic may endure under those conditions for some time (though I don’t much trust President Obama with extraordinary powers), but humankind being inherently corruptible, it cannot be sustained forever.

    In a recent piece at National Review, Andrew McCarthy wrote: “To this president and his government, I am the problem. Americans who champion life, liberty, and limited government are not just the loyal opposition; they are deemed potential terrorists, and are derided with considerably more intensity than the actual terrorists.” Strikingly, however, Mr. McCarthy himself asserts that the President of the United States should have the unchecked authority to declare anyone an enemy combatant, hold them without charges, and subject them to water boarding.

    Aren’t these views in tension? Does the threat posed by terrorism really justify investing President Obama with these powers?

    And Mr. Yoo, how do we know when the War on Terrorism is over?

    • #19
    • May 29, 2010 at 2:36 am
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  20. Inactive

    An old thread, but maybe more important to revisit now that she is Justice Kagan.

    I don’t know her well, but do have some personal experience, and FWIW found her quite skillful at disguising her own views. In her Separation of Powers class she seemed to delight at watching the breakdown of traditional conservative vs. liberal divides as people unwittingly revealed themselves as more congressional or executive in their political leanings. On a personal level, she was supportive of my examinations of executive orders and efforts to suggest a way to narrow their use, while at the same time I never got the sense she agreed with my thesis. The other main thing I remember is that her ambition to become a federal judge was widely assumed on campus (i.e., she was there only to wait for the next Democratic president to appoint her to the bench). I wouldn’t assume her past all that predictive. I wrote off much of the pre-confirmation commentary of her as pro-executive as political spin. Truth is, I think no one really knows at this point.

    • #20
    • November 1, 2010 at 11:26 am
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