At Balkinization, Marvin Ammori and Mark Tushnet review some of Elena Kagan’s scholarship (and seem more impressed than Paul Campos and Paul Mirengoff). Ammori explores some of her First Amendment scholarship and wonders whether she is sympathetic to “corporate speech rights,” such as those embraced by the Supreme Court in Citizens United. Brian Leiter also comments here.
Tushnet is particularly impressed by her article “Presidential Administration,” 114 Harvard Law Review 2245 (2001); “this is an incredibly smart and insightful piece of work.” I agree with Tushnet. The piece foreshadowed the rise of White House “czars” and other methods of ensuring greater Presidential control of the executive branch. Combined with “Chevron’s Nondelegation Doctrine,” 2001 Supreme Court Review 201 (2001) (co-authored with David Barron), it reveals that Kagan is a strong supporter of Presidential authority over executive agencies.
I am particularly struck — though definitely not convinced — by her and Barron’s effort in the latter article to reformulate Mead‘s approach to Chevron deference to grant more authority and autonomy to high-level political appointees. Specifically, they argue that Chevron deference should turn on the nature of the decisionmaker, not the process through which the decision was made. In other words, if a statutory interpretation is made by a low-level career official in the conduct of his or her duties (e.g. a tariff classification ruling), no deference is due. But if it is made by a high-level political appointee to which Congress has delegated decision-making authority under the relevant statute, this fact is more important than whether the agency used notice-and-comment rulemaking or some other more formalized decision-making process. It’s an interesting argument — and one that shares some commonalities with Justice Scalia’s approach to Chevron deference questions — but also one that is in tension with principles underlying the Court’s recent (and, in my view, generally sensible) administrative law jurisprudence. Once Kagan is confirmed, as I expect, it will be interesting to see how she enters the Court’s internal debate over Chevron deference.
[Note: Revised to add additional links.]
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May 10, 2010, 8:51 amrunape says:
JA,
I would have thought her approach pretty much squarely opposed to Scalia’s. Isn’t it true that he would defer to any executive official, no matter how lowly? (He’s even suggested deference to litigating positions, yes?) I thought Kagan’s view is much more similar to Breyer’s, in the sense that both are in favor of selective deference, with the only distinction being the criteria for deference. Scalia, by contrast, would favor deference across the board. Or at least that’s how I understood the competing views.
May 10, 2010, 10:26 amJonathan H. Adler says:
You make a good point. What I was trying to suggest is that her theory doesn’t line up perfectly with either the Mead majority or Justice Scalia. Yes she is in favor of selective deference, but what drives her theory (as I see it) is the sort of separation-or-powers concern that drives Scalia’s approach: The desire to have policy-laden questions of statutory interpretation made by politically accountable officials rather than judges. The current court, on the other hand, grounds Chevron deference in Congressional intent, and is more process oriented. So while she supports Mead, she does so on grounds that (in my view) share some concerns that motivate Justice Scalia more than other members of the Court.
JHA
May 10, 2010, 11:17 amJR says:
JHA,
May 10, 2010, 11:55 amIsn’t it also true of Scalia that in the Brand-X case he was actually ultra-supportive of deference to judicial interpretations? Correct me if I’m wrong, but I thought in Brand-X, he argued for supporting any judicial interpretation of a vague statutory term, regardless of whether it was the definitive interpretation or not. Wouldn’t that argue against a stance for deference to “politically accountable officials” (which you noted in your response to runape)? I think in Brand-X, Scalia tries to argue against agency expertise and interpretation if there has been any judicial interpretation — regardless of whether the judiciary has deemed its interpretation to flow from the unambiguous terms of the statute.
Jonathan H. Adler says:
Yes and no. Justice Scalia believes that once a Court rules on the meaning of a statute, that meaning should be fixed — and not overturnable by an agency — but he thinks that the number of cases in which courts should be called upon to make their own interpretations should be fewer, because they should be deferring to agencies in the first instance. So, in Brand X he writes:
I actually think Brand X fits nicely with Mead, but then I didn’t find Scalia’s dissent in that opinion compelling either.
JHA
May 10, 2010, 12:11 pmCrunchy Frog says:
Given your fondness for Chevron deference to presidential appointments, this statement is not surprising, but still wildly premature. Let’s see what the Senate does first.
This egg just got laid – it ain’t a chicken yet.
May 10, 2010, 1:28 pmJoshua Zambrano says:
I am not sure I understand why there is such opposition to the Citizens United ruling. It’s not like the ruling dealt with some big corporation whose CEO or board decided to use company funds to pursue a vendetta against a politician. Rather, it involved Citizens United, a conservative nonprofit group whose stated mission was to essentially restore what it views conservative principles to America. As such, its documentary criticizing Hillary Clinton was perfectly in line with its stated goals.
To take the flip side of this, what does it accomplish to prevent such private, non-profit, and politically-minded groups from being able to use their funds to criticize candidates before elections? It ensures more difficulty for average Americans to organize and fund critical views in the media of political candidates. While it serves to protect current political candidates, major politicians and parties, it is detrimental to 3rd parties and independents. If you remove the ability of such organizations to have impact, then isn’t the major influence limited to rich individuals who pull the strings, as opposed to many average-income individuals pooling their resources to have political impact?
If there is a part of the ruling I disagree with, it is that it treats both nonprofit and for profit organizations alike. I would think there more justification for limiting this impact for publicly traded companies than nonprofit organizations with political intent.
May 10, 2010, 1:55 pmJoshua Zambrano says:
Furthermore, this whole concept of judicial authority and where deference should lie seems misplaced to me. I side with Abraham Lincoln, who said this is a government ‘of the people, by the people, and for the people.’ Assuming that somehow judicial history will get everything consistently right, that flawed people will over time make consistently right decisions, despite the fact that previously flawed decisions may be upheld as the new standard for later judges to follow in a difficult-to-end cycle, does not seem valid reasoning to me.
Judges should be concerned most with preserving a specific framework of basic, ‘inalienable’ Constitutional rights, life, liberty, and the pursuit of happiness, and preventing all other forms of government and citizenry from infringing on these rights of others. Beyond that, I would say the decision making, whenever possible, should rest first with the public, secondarily with their representatives, and thirdly with the courts who most of all should simply be seeking to prevent infringement of basic rights, not legislating new rights into law through judicial mandate.
We ought to apply more ballot initiatives during elections, a capability that is now available, to let key decisions about the will of the people rest in the hands of the people.
As the Declaration of Independence states, governments are good only insofar as they represent their people, and if not, ought to be replaced. Indeed, representatives are more for handling the day to day administrative tasks and smaller issues if the populace is capable of deciding, as with today’s technology, the major issues.
May 10, 2010, 2:25 pmyarrrrr says:
Kagan let liberal professors get away with plagiarism…
http://www.jewishworldreview.com/0510/kagan_blemish_gahr.php3
Doubt this will derail her nomination but the GOP should bring it up just to smack at Laurence Tribe…
May 10, 2010, 2:40 pmloki13 says:
And then….
It is helpful to answer your own questions, n’est-ce pas?
May 10, 2010, 3:45 pmCornellian says:
It is helpful to answer your own questions, n’est-ce pas?
I approve of the use of French in VC blog comments.
May 10, 2010, 4:32 pmSammy Finkelman says:
Joshua Zambrano: I am not sure I understand why there is such opposition to the Citizens United ruling.
And then….
Joshua Zambrano: If there is a part of the ruling I disagree with, it is that it treats both nonprofit and for profit organizations alike.
If I’m right, the law didn’t distinguish between them, so how could the court?
May 16, 2010, 11:36 am