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For liberal and libertarian experts in constitutional law, few issues are more important than the rapid expansion of presidential power under the Bush administration. From Bush's "signing statements" used to alter new legislation, to the compromises of civil liberties made for national security, to high-profile issues like torture and NSA wiretapping, these issues have driven liberals to hope that Obama will roll back executive power. But some liberal pundits have raised concerns that Elena Kagan, Obama's Supreme Court nominee, might actually be a step backwards in that cause. Here are the liberal cases for and against Kagan on executive power.

Against Kagan

  • Why Was She Silent During Bush Abuses?  Salon's Glenn Greenwald worries about Kagan's silence during the historic expansion of executive power under the Bush administration. "Where was Elena Kagan during all of this? Why is it seemingly impossible to find even a single utterance from her during the last decade regarding the radical theories of executive power the Bush administration invoked to commit grave crimes and other abuses? ... Given the severity of the crisis posed by Bush/Cheney lawlessness, what justifies someone with Kagan's platform -- Dean of Harvard Law School and former Clinton White House lawyer -- remaining utterly silent in the face of that assault?"
  • Growing SCOTUS Consensus On Expanding Executive Power  The Atlantic's Andrew Sullivan is hopeless. "A person who will back executive power comes after two of the most radical pro-executive Justices (Alito and Roberts) in recent history. The onward march of the dictatorial presidency - in a time of constant threats from abroad - continues."
  • On National Security, More Civil Liberties Sacrifices  Reason's Radley Balko thinks that "Kagan's pro-government position" could "shift the balance of the court on key civil liberties vs. war on terrorism issues" away from the civil liberties and towards expanded presidential power. For example, her office "argued against expanding the rights of the accused and wrongly persecuted when a specific federal law wasn’t in question, such as when she argued that prosecutors who manufacture evidence that leads to the conviction of an innocent person should not be subject to lawsuits."

For Kagan

  • She Wasn't So Silent Under Bush  Think Progress' Ian Milihiser provides a counter-example. "To the contrary, Kagan spoke out in the clearest possible terms against an amendment offered by Senator Lindsay Graham (R-SC) which would have stripped detainees of any meaningful access to judicial process."
  • 'Skeptical' of Presidential Power  The American Prospect's Adam Serwer writes, "when Kagan asserted the executive's authority to detain al-Qaeda members without trial under the laws of war, she was stating what her prospective boss had stated earlier. Even prominent Bush critic Dawn Johnsen came to the same conclusion when asked a similar question during her hearing. Kagan signing onto this criticism of the Graham amendment suggests far more skepticism of executive power in the realm of foreign policy than I initially assumed."
  • She's Liberal on Executive Power  Slate's Walter Dellinger makes the case. "The Bush-Cheney view of executive power was wrong not because it asserted that the president could direct administrative agencies to achieve policy goals. It was wrong because it allowed for the president to ignore decisions made by Congress and assert unilateral power to violate duly enacted laws. That is a view of presidential power that Kagan expressly rejects. She believes that the president has to comply with the law, writing that, 'If Congress, in a particular statute, has stated its intent with respect to presidential involvement, then that is the end of the matter.'"

Why It Might Not Matter

Newsweek's Michael Isikoff explains:

Elena Kagan's selection provides a hidden benefit for President Obama's national-security team: it significantly boosts its chances of prevailing in controversial claims to the court involving the war on terrorism.

The reason: Kagan will inevitably have to recuse herself from an array of cases where she has already signed off on positions staked out by the Obama administration relating to the detention of terror suspects and the reach of executive power. As a result, the seat occupied by Justice John Paul Stevens—the most forceful advocate on the court for curbing presidential power—will be replaced by a justice who, on some major cases over the next few years, won't be voting at all.

This article is from the archive of our partner The Wire.

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