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Imagine the Reaction if Bush Nominee for Supreme Court Taught a Course on “Presidential Lawmaking”

Morgen on May 13, 2010 at 2:28 pm

This doesn’t qualify as much of a revelation since administrative law is Elena Kagan’s primary area of expertise, and one of her few items of legal scholarship is a frequently cited 2001 article entitled “Presidential Administration“. But imagine the outcry from the left if Bush had nominated someone who had taught the following course at Harvard:

In truth, many principled individuals on the left are just as opposed to Kagan as most conservatives, and her legal scholarship and advocacy for expanded Executive Branch powers are a big reason why. But in thinking about this it struck me that perhaps by putting so much focus on constraining judicial activism, conservatives have missed a shift in strategy over the past decade by power seekers on the left.

Maybe it’s not judicial activism we need to worry most about, but judges who support the concentration of power and expropriation of the lawmaking function by the Executive Branch.

Think about it. In just over a year, this Administration has assumed control over large swaths of the economy. They are essentially running the largest U.S. automaker, and with Fannie Mae and Freddie Mac they have effective control of the entire mortgage industry. And don’t forget that the Feds essentially own AIG and a large portion of Citibank, and have also now nationalized the student lending industry.

Then there is healthcare reform which once fully implemented will represent the largest accumulation of federal administrative power since the New Deal. Notably, the bill delegates a massive amount of “rule-making” (i.e. law-making) authority to the Health Secretary.

The other legislative priorities for the Administration, if enacted, will delegate to the executive branch regulatory control over the energy sector, and most of the remaining segments of the financial services industry. (No need to include GSE reform – they  already control Fannie and Freddie).

Evaluated in this light, and given all the coming legal challenges, it’s really no surprise that the President would nominate someone who has been a chief advocate for the expansion of executive branch powers. The fact that it is someone he has had a long-term relationship with, who adores him unconditionally, is just icing on the cake.

Update: Here’s another similar Kagan course at Harvard:

I’m all about “the need to limit that power to protect citizens from government oppression and unfairness”. Hopefully she can enlighten us as to her views on the limits of executive power at her confirmation hearing…but I’m not holding my breath.

Exit question: does she not think independent regulatory agencies are really “independent”?

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