Kagan's record on executive privilege
President Barack Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court is sure to be front page news tomorrow. But its significance may be appreciated only after reading today’s stories about Obama’s desire for new legislation permitting federal investigators to question terrorism suspects without issuing a Miranda warning.
Given Kagan’s record on executive power—and the Miranda news as the latest example of executive power claimed by this administration— we might now begin to conclude that, even with a Democrat in the White House, there will be no broad-scale limitations on presidential power anytime soon.
It is time to realize that broad presidential power is a structural issue—not a Bush Republican or Obama Democratic one.
If confirmed, Kagan will probably not play a role in scaling back presidential power in any meaningful way. It is certainly true that she probably won’t be as solicitous of presidential power as the Bush administration. In a speech at West Point in 2007, for example, Kagan was critical of the views of executive power expressed by the lawyers in the Bush Justice Department.
But there is no indication in her background that she desires significant constraints on presidential power. And there are at least some reasons to think that things might head in the other direction.
Kagan, after all, is to replace John Paul Stevens, the justice who wrote perhaps the two leading opinions —one a majority opinion, one a dissenting — calling for the limitation of executive power during the Bush administration.
By far her most significant academic article is a pre-9/11 robust defense of presidential power. The article summary indicates that Kagan’s views of executive power were “broad though not unlimited.”
During her confirmation hearings to be solicitor general, Kagan said that the president could indefinitely detain someone suspected of offering financial support to Al Qaeda. Given her experience in the executive branch during the Clinton administration, Kagan is likely to follow in the footsteps of past nominees with significant experience in the federal executive branch — like Justice Antonin Scalia or Chief Justice John Roberts — and be deferential to claims of presidential power.
If the Kagan nomination means that the Supreme Court will not be limiting presidential power anytime soon, Obama’s recent actions suggest that he will not be limiting presidential power anytime soon either. While the administration has scaled back in substance and in rhetoric from many of the Bush administration’s more extreme positions, it has also embraced many robust claims of broad executive power.
The administration has announced a modified state-secrets privilege, though it still permits the Justice Department to ask courts to dismiss many private lawsuits because they might endanger national security. The administration has advocated changes in the military commission system, but still supports using these commissions in some cases. The administration has also argued that detainees being held at the Bagram Air Force Base in Afghanistan have no habeas rights to petition for their release.
The Kagan nomination, combined with the administration’s record on presidential power, could mean that the executive branch is likely to continue to increase in power – if in far smaller increments than during the Bush administration.
But rather than continuing to hope for a presidential knight in shining armor to restore balance to the separation of powers, perhaps these events will now force us to consider that we should not depend on a president—or the justices a president nominates—to limit the power of the executive branch.
David Fontana is associate professor of law at George Washington University Law School.
Read more: http://www.politico.com/news/stories/0510/37014.html#ixzz0nYfyaz00
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3 comments:
This expansion of the power of the executive branch in the United States is not a power play for executive to gain more power. Obama's desire to grant federal investigators the power to question suspected terrorists without giving them their miranda warning is not a power play. It appears to be a reaction to critics of the administrations ability to handle attempted terrorist attacks, like the the Christmas bomber and the recent attempts in Time Square. What Obama is wanting is a more efficient way to handle captured suspected terrorists and get needed information quicker. Though suspending civil rights never goes over well with the people. even when terrorists are involved. The wording of suspected terrorists is too vague to be used to suspend the 5th amendments Miranda warning. It would be acceptable if the person is to be a known terrorist, but suspected is too vague.
President Obama's desire to expand the Executive's power by granting federal investigators the power to question terrorism suspects without issuing the Miranda warning is an attack on civil rights. To have reasonable suspicion that a person may be a terrorist is completely fine, if backed by liable reasons, but to question them without Miranda rights is a violation of civil rights. This also would be a violation of separation of powers, because in the supreme court case Miranda v. Arizona, the court established the Miranda warning and for the government to create legislation saying this right can be withheld because of reasonable suspicion of terrorism, this would totally ignore the previous ruling of that court. The court did not create an exception rule to this right. If the person has been confirmed in doing terrorist activities, then this would be okay, but the word suspicion does confirm someone of terrorist activity.
The PLP believes that everyone should be read their rights because they believe that everyone should be treated fairly. It is unconstitutional that people are not read their rights.
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