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http://fray.slate.com/discuss/forums/thread/3836577.aspx?ArticleID=2251138">la savante writes in reply: OK, look. First of all, the Hampton v. Mow Sun Wong opinion was issued in 1976, less than a year after Stevens became a justice, and since, as has been noted repeatedly by the legal commentators since Stevens’ retirement announcement 10 days ago that Stevens began his Supreme Court tenure as a typical Republican justice, that alone would negate the claim that Kagan’s views on executive power are the same as Stevens’ current views—even if Dellinger’s representation of Hampton were accurate. But it is not. Hampton actually indicates the opposite of Dellinger’s claim. Here’s the entire “syllabus”—the Court’s own summary of the issues in the case and the Court’s holding: The Civil Service Commission (CSC) regulation barring noncitizens, including lawfully admitted resident aliens, from employment in the federal competitive civil service held unconstitutional as depriving such resident aliens of liberty without due process of law in violation of the Fifth Amendment. Pp. 99-117. ‘(a) While overriding national interests may justify a citizenship requirement in the federal service even though an identical requirement may not be enforced by a State, the federal power over aliens is not so plenary that any agent of the Federal Government may arbitrarily subject all resident aliens to different substantive rules from those applied to citizens. When the Federal Government asserts an overriding national interest to justify a discriminatory rule that would violate the Equal Protection Clause of the Fourteenth Amendment if adopted by a State, due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve that interest. Pp. 99-105. (b) While the CSC's policy of conditioning eligibility for employment in the federal civil service on citizenship has been considered by Congress in certain Appropriation Acts imposing various limitations on the classes of employees who may receive compensation from the Federal Government and by various Presidents in Executive Orders relating to the CSC's authority to establish standards for federal employment, those Appropriation Acts and Executive Orders cannot fairly be construed to evidence either approval or disapproval of the CSC regulation in question. Pp. 105-114. (c) Assuming without deciding that an explicit determination by Congress or the President to exclude all noncitizens from the federal service would be adequately supported by the national interests of (1) providing the President with an expendable token for treaty negotiation purposes, (2) offering aliens an incentive to become naturalized, and (3) having, for the sake of administrative convenience, one simple rule excluding all noncitizens from employment when citizenship is clearly an appropriate and legitimate requirement for some important and sensitive positions, such interests cannot provide an acceptable rationalization for such a determination by the CSC. The first two are not matters that properly concern the CSC. The third interest is likewise unacceptable where it does not appear that the CSC fully evaluated the relative desirability of a simple exclusionary rule, on the one hand, or the value to the service of enlarging the pool of eligible employees, on the other, and where it cannot be reasonably inferred that the administrative burden of establishing the job classifications for which citizenship is an appropriate requirement would be particularly onerous. More significantly, in view of the quality of the interest at stake, any fair balancing of the public interest in avoiding the wholesale deprivation of employment opportunities caused by the CSC's indiscriminate policy, as opposed to what may be nothing more than a hypothetical justification, requires rejection of administrative convenience as justification for the regulation. Pp. 114-116.
(d) Since alien residents are admitted as a result of decisions made by Congress and the President, implemented by the Immigration and Naturalization Service acting under the Attorney General, due process requires that the decision to deprive such residents of an important liberty be made either at a comparable level of government or, if it is to be permitted to be made by the CSC, that it be justified by reasons that are the proper concern of that agency. P. 116.
500 F.2d 1031, affirmed.
In other words, rather than supporting what has come to be known as “the unitary executive” doctrine—which claims that the president is entitled to turn the federal administrative agencies (e.g., the FDA, OSHA, the EPA, the Consumer Product Safety Board) into a political arm of his administration—it rejects that doctrine. It also necessarily rejects the separate claim, later made by the G.W. Bush administration and now by the Obama administration, that under the Constitution the president has powers as commander in chief that supersede normal constitutional restraints—an oxymoron that they justify on national security grounds.
As for Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the case ushered in what is known in shorthand legalese as “Chevron deference,” or “the Chevron doctrine, was decided in 1984. Wikipedia describes the background, issues and holding:
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. Chevron is the Court's clearest articulation of the doctrine of "administrative deference," to the point that the Court itself has used the phrase "Chevron deference" in more recent cases.
Under the Supreme Court's ruling in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), United States federal courts have the authority to judicially review the statutes enacted by Congress, and declare a statute invalid if it violates the Constitution. But the Constitution sets no express limits on how much federal authority can be delegated to a government agency. Rather, limits on the authority granted to a federal agency occur within the statutes enacted by Congress.
Facts
Congress amended the Clean Air Act in 1977 to address states that had failed to attain the air quality standards established by the Environmental Protection Agency(EPA) (Defendant). "The amended Clean Air Act required these 'nonattainment' States to establish a permit program regulating 'new or modified major stationary sources' of air pollution." During the Carter administration, the EPA defined a source as any device in a plant that produced pollution. In 1981, after Ronald Reagan's election, the EPA adopted a new definition that allowed an existing plant to get permits for new equipment that did not meet standards as long as the total emissions from the plant itself did not increase. The Natural Resources Defense Council (NRDC), an environmental protection group, challenged the EPA regulation in federal court. Chevron, an affected party, appealed the lower court's decision.
Issue
The issue facing the Chevron court, therefore, was what standard of review should be applied by a court to a government agency's own reading of a statute that it is charged with administering.
Holding
The Court, in an opinion by Justice John Paul Stevens, upheld the EPA's interpretation. A two-part analysis was born from the Chevron decision (called the "Chevron two-step test"), where a reviewing court determines:
(1) Whether the statute is ambiguous or there is a gap that Congress intended the agency to fill. (If the statute is unambiguous, and the interpretation runs contrary to the statute, then the interpretation is considered unreasonable as the text of the statute prevails.)
(2) If so, whether the agency's interpretation of a statute is reasonable or permissible. If an agency's interpretation is reasonable, then the court will defer to the agency's reading of the statute.
The Reagan administration and later the G.W. Bush administration used the Chevron doctrine to implement its Unitary Executive theory, which, in a 2001 Harvard Law Review article, Elena Kagan appears to have largely adopted as her own theory. Wikipedia quotes part of Harvard Law Review’s abstract of the article:
This Article examines a recent and dramatic transformation in the relationship between the President (and his staff) and the administrative state. Professor Kagan argues that President Clinton, building on a foundation President Reagan laid, increasingly made the regulatory activity of the executive branch agencies into an extension of his own policy and political agenda. He did so, primarily, by exercising directive authority over these agencies and asserting personal ownership of their regulatory activity -- demonstrating in the process, against conventional wisdom, that enhanced presidential control over administration can serve pro-regulatory objectives. Professor Kagan offers a broad though not unlimited defense of the resulting system of "presidential administration" against legal and policy objections. This form of controlling agency action, she argues, comports with law because, contrary to the prevailing view, Congress generally should be understood to have left authority in the President to direct executive branch officials in the exercise of their delegated discretion.
The article probably was drafted before the 2000 presidential election (or whatever that was). Whether Kagan still holds a Unitary Executive view of the Chevron doctrine is, to my knowledge, unclear. But what is clear based upon Stevens’ opinions on the Chevron doctrine is that he, Stevens, does not. Also clear, by the way, is that Justice Kennedy, who has added the fifth vote in important Chevron doctrine EPA cases in recent years, does not either.
As for Dellinger, he surely knows that Kagan’s law review writings and the positions she has taken as solicitor general, at least on executive authority to override constitutional civil rights, is hardly similar to Stevens’. It is not the progressive commentators’ representations of Kagan’s positions that are bogus. It is Dellinger’s representations about Stevens’ positions that are.
So why, given his longstanding, extremely strong and vocal positions on at least this latter constitutional issue and its profound importance, why is he misrepresenting that there is no significant daylight between Kagan and Stevens now? Is it that he, like Tom Goldstein, expects Kagan to be the nominee and so has a conflict of interest in supporting her nomination?
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