How imperial the presidency?
The most heat Kagan gets from the left concerns her views regarding executive power. The fear, as the American Prospect’s Adam Serwer put it last month, is that she is “John Yoo with wide lapels,” referring to the controversial George W. Bush administration lawyer. She has enough of a record for allies and skeptics to produce evidence to bolster their view. She wrote in favor of an assertive executive in 2001, but noted that clear congressional intent “is the end of the matter.” She blasted the Bush-Cheney imperial overreach in 2007 but endorsed a broad view of presidential wartime powers during her nomination for solicitor general in 2009. She seems to lean in a Rooseveltian direction, that executive power can be used to further progressive ends. That’s fine, but her views here bear further elucidation. The bottom line: While uneven, the trend over the last decade has been toward a dangerously empowered executive. The extent to which she would abet that is important. Magic bullet. The
