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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?