But for Ms. Kagan, finding this authority in the Constitution was a bridge too far, a view that put her firmly in the camp of those who see the president’s powers as circumscribed.

Image Credit... David Plunkert

She assiduously rejected any claim that presidents may manage the many functions of the vast administrative state because of their constitutional position as chief executive, a view she attributed to “unitarians.” (These are not your mother’s non-Trinitarian Christians.) Instead, she concluded, the framers did not see the Constitution’s vesting of the nation’s “executive power” solely in the president as a grant of any substantive power.

She based her rejection of the unitary executive view on Supreme Court precedent. She invoked Youngstown Sheet and Tube v. Sawyer of 1952, in which the Supreme Court blocked President Harry Truman’s seizure of the nation’s steel mills during the Korean War, and supported Congress’s power to effectively render whole agencies independent of presidential control.

Incidentally, Justice Robert H. Jackson, who as attorney general in the early 1940s had laid claim to broad executive powers for President Franklin Roosevelt and had even written in support of his seizure of an aircraft factory, turned 180 degrees in Youngstown, insisting that Truman had no such right. He wrote a concurring opinion stating that, as a judge, he could not accept “self-serving press statements of the attorneys for one of the parties,” even when “the advocate was himself.” Should we expect anything more consistent of a Justice Kagan?

In her law review article, Ms. Kagan also lauded Supreme Court holdings that Congress can prohibit presidents from firing subordinate officers, which effectively prevents the president from giving orders. This would place the executive agencies under the political thumb of the legislative branch. “I acknowledge that Congress generally may grant discretion to agency officials alone,” Ms. Kagan wrote, and “the president must respect the limits of this delegation.”

Under this approach, Congress could free the Justice Department, the Defense Department and any other agency created by Congress from presidential control. To be fair, Ms. Kagan thinks this would be a bad idea (she praised President Clinton’s centralization of authority in the White House because it fostered “accountability” and “effectiveness”). But she argued that the Constitution gives the president no power to prevent Congress from doing so.

This is simply wrong. Article II of the Constitution vests in the president alone “the executive power” of the United States. As Justice Antonin Scalia wrote in his dissent from the court’s 1988 decision upholding the constitutionality of the Office of the Independent Counsel, “this does not mean some of the executive power, but all of the executive power.” (His argument was proved prescient in 1999 when Congress let the law authorizing the independent counsel lapse.)