Legal Commentary

Kagan?s Scholarship

By Jonathan H. Adler

At Balkinization, Marvin Ammori and Mark Tushnet review some of Elena Kagan?s scholarship (and seem more impressed than Paul Campos). 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.

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 rist 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.

Full post as published by The Volokh Conspiracy on May 10, 2010 (boomark / email).