By Kyle Scott
Elena Kagan shares a legal specialty with one of the strongest personalities on the Supreme Court: Antonin Scalia. Comparing the two on the dimension of administrative law is appropriate for three reasons: (1) It is one of the few areas in which Kagan has left a paper trail. She has no judicial experience and therefore the most reliable source for finding her views are in her writings as a law professor and dean. (2) Antonin Scalia is not only the strongest personality on the Court; he is one of the most consistent Justices, thus making him a good basis of comparison. (3) Scalia taught and wrote about administrative law before joining the Court. Thus, we can compare apples-to-apples. A judge may express themselves differently in the capacity of judge than they might as an author of a law review due to the different roles one must fill in each capacity. Thus, comparing views expressed in law review articles is the only proper way to begin a comparison. But, focusing on administrative law, particularly the Chevron doctrine, has additional relevance. Chevron is the most cited case in Supreme Court history, more than Marbury, Roe, or Brown. With the growing importance of administrative agencies in the policy arena, a Justice’s position on how much deference the Court ought to grant an administrator or an agency is a fundamental question. Additionally, Justice Stevens, whom Kagan would replace, is the author of the majority opinion in Chevron.
The Chevron doctrine set up a two-stage test to see whether the Court should defer to an administrative agency’s interpretation of a legislative statute. In Scalia’s view, deference should be granted to all administrators if it is to be granted to any at all. Kagan’s view seems to be that only administrative heads should be granted deference, and decisions made by all other administrators should be reviewable by the Court. Kagan’s view is more in line with the view expressed by the Court in Mead, a decision in which Scalia was the lone dissenter. The Mead decision increases the power of the Court to review agency decisions, and even legislative statutes regarding those decisions, if the interpretation and implementation of the statute occurs at a level below the agency head. One potential downside of the Mead decision is that it allows the ideological disposition of the Justices to enter into the decision because it allows for greater latitude in what can be reviewed.
Kagan’s view on deference, that it should only be extended to the head of agencies, is not only compatible with the current Court, but it is also consistent with the theory of a unitary Executive as expressed by Alito and the most recent Bush Administration. By deferring only to agency heads, particularly those who are appointed by the President, Kagan is then effectively deferring to the policy views of the President. This extension of her argument is not conjecture, as it was laid out as such in her 2001 law review article in which she demonstrates, and defends, how Clinton used administrative agencies to progress his policy agenda. With the increasing role of administrative agencies in health care, the environment, finance and economics, the policy implications of Kagan’s view of administrative deference should be obvious. It would grant the President a greater role in formulating policy than is constitutionally acceptable. Kagan’s view of administrative deference and the role of the President look to be more consistent with Obama’s predecessor than Scalia. If this is the case, then Hope and Change looks a lot like politics as usual.
Kyle Scott is assistant professor of political science at the University of North Florida and author of Dismantling American Common Law: Liberty and Justice in Our Transformed Courts and his most recent The Price of Politics: Lessons from Kelo v. City of New London.