05.31.2010 0

Elena Kagan: She’s No Constitutional Originalist

  • On: 06/21/2010 19:03:00
  • In: Appointments
  • By Victor Morawski

    Senator John Cornyn (R-Tex) was decrying the fact that the new material requested by the Senate Judiciary Committee from the Clinton Library detailing Elena Kagan’s work for that Administration, which could be crucial to an accurate understanding of her judicial philosophy, would probably not be available in time.

    What we must do instead, then, is attempt to locate clues to that judicial philosophy from what is available.

    We can find an insight to how she might approach Constitutional issues generally from her discussion of a specific Constitutional issue in her Harvard Law Review article “Presidential Administration.” The issue concerns whether, as she puts it, “The [Supreme] court has allowed Congress too much power to insulate [Federal] agencies from the President.” Does this occur where Congress delegates discretionary authority “to a specified agency official rather than the President”? And if done, is the President bound to keep “hands off” that official within the designated area of authority?

    She defends the view that Congress can do so and, where it does do so, says that the President must respect the resulting limitation of Presidential agency oversight. Her position does not result from a determination that this is what Framers of the Constitution intended. She specifically rejects the originalist stance, as will soon become evident.

    First, though, she prefaces her discussion with some shocking revelations of her general approach to the Constitution:

    “Issues of constitutionality, of course, often diverge from issues of normative [ethical] appeal: much action that is constitutional is unwise, and (perhaps less acknowledged in our legal culture) some action that is unconstitutional has much to recommend it.”

    Her above comments certainly invite the question: Was the action of the Court in allowing Congress such powers of delegation one which “has much to recommend it” though unconstitutional? That she seems to think so may be surmised from the fact that, while she claims to accept the “rudiments” of the argument that challenges the constitutionality of such Congressional action, her primary position seems to be that on this issue the Constitution as originally written is largely irrelevant.

    Ascribed by her to a group of legal scholars known as ‘unitarians’ the originalist position holds that Article II of the Constitution “establishes a President with plenary control over all heads of [Federal] agencies…” Accordingly, the Court would have acted contrary to the “original meaning of the constitutional text” in allowing Congress to strip the President of some of this control.

    Yet, she defends the Court’s action and rejects the originalist position by claiming that Article II is “insufficiently precise” and “insufficiently relevant” to lend it adequate support. Additionally, she derides “constitutional values” offered by originalists as “too diffuse, too diverse, and … too easily manipulable” to be used to reverse this practice by Congress.

    Though others think them out of accord with the Constitution as originally intended by its Framers, she on the other hand defends the Supreme Court’s removal cases, the cases from which the decisions arose giving Congress the relevant authority to restrict presidential control over Federal officials, by saying that she takes them, “and all that follows from them, as a given.”

    Here she seems to be advocating the startling position that, in rendering these decisions, the Supreme Court was right not because it correctly interpreted the original intent of the Framers — but was so “by definition” simply because it was the entity that rendered them.

    And would she think the same of her own opinions as Supreme Court Justice? Have we here a nominee who believes that, as a member of the Nation’s Highest Court, her decisions from the Bench would be right by fiat — a given?

    Victor Morawski, professor at Coppin State University, is a Liberty Features Syndicated writer for Americans for Limited Government.


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