Ms. Kagan’s nomination has come at a time of intense controversy over federal interventions in the financial, auto and health care industries. But her views may elude partisan fodder over Big Government: Her approach would be equally useful for a President Ronald Reagan, who wanted agencies to weaken regulations, as for a President Barack Obama, who generally wants stronger rules.
“She clearly thinks that greater presidential control over the bureaucracy is a good thing because it can bring vigor to government,” said David F. Engstrom, a Stanford law professor of administrative law. “She thinks that is important in light of political gridlock in Washington.”
During the Clinton administration, Ms. Kagan spent four years in the White House helping advance the administration’s domestic policy agenda — an effort that often involved issuing new regulations to achieve goals unilaterally despite a Republican-led Congress. That experience shaped her thinking about administrative law, said Richard H. Pildes, a New York University law professor.
“She marries three or four years of intense practical experience, right at the intersection of the relationship between Congress, agencies and the White House over governance — with her many, many years of academic study of these issues,” Mr. Pildes said. “So she brings both sides of that experience to these core issues about the legal framework within which the government operates.”
The struggle over control of agencies traces back to the New Deal, when Congress created many specialized agencies inside the executive branch to handle technical issues and delegated its lawmaking power to them. Over time, presidents began to see them as too much under the thumb of Congressional oversight committees and chafed at their lack of control.
Those tensions came to a head in the Reagan administration, which pushed to supervise agencies more closely from the White House to advance its deregulatory agenda. The Clinton administration escalated that effort from a pro-regulation perspective.
Surveying that arc as a Harvard professor in 2001, Ms. Kagan published two scholarly articles that encouraged greater centralized control of agencies.
One article, co-written with a colleague, looked at the allocation of decision-making power inside an agency. It proposed that when an agency is sued, courts should give high levels of deference only to decisions made by its administrator and top aides — a change that would create incentives to route more decisions through the front office where political appointees work.
The other article, which she wrote alone, looked at the allocation of power between the White House and agencies. It defended presidents’ tightening grip over agencies and proposed that courts should give special deference to agency actions if the White House directed them.
“When read together, both these articles point toward strong central control of the federal bureaucracy,” said Christopher S. Yoo, a University of Pennsylvania law professor. “The control goes to the agency head, and the agency heads are in turn accountable to the president.”
Ms. Kagan’s views place her within the center of a debate about the balance between making the bureaucracy more responsive to national elections and fears that excessive politicization could trump neutral expertise.
Among those who are critical of Ms. Kagan’s approach is Peter L. Strauss, a Columbia University law professor. He has argued that if Congress has delegated its lawmaking authority over some issue to an agency head, the president cannot legally order the agency to reach a certain result. That approach, he said, would concentrate too much power in the White House.
“It’s important that people understand that the president is commander in chief of the military forces, but he’s not commander in chief of domestic government,” Mr. Strauss said. “What he is in relation to domestic government is an overseer. He gets to counsel. He gets to call up an agency head and say, ‘I’d really like you to do this.’ I have no problem with that. But it isn’t the agency head’s legal obligation to obey him.”
Ms. Kagan’s writings suggest just the opposite. She analogized an agency head to the captain of a naval vessel: even though military regulations put the captain in charge of a ship, it is understood that his superior officer can give him orders. Similarly, she wrote, even if a statute delegates power to an agency head, it should be understood that the president can tell him what to do with that power.
John F. Manning, a Harvard law professor, said there may be little difference in practice between such views because the president can fire heads of executive agencies, so they are likely to obey his wishes. But Mr. Strauss argued that agency heads are more likely to resist political meddling if they understand that decisions are theirs to make unless the president is willing to take the high-profile step of firing them.
Still, Ms. Kagan does not go as far as some scholars in the case of independent agencies — those whose leaders may not be fired by the president for adopting policies he does not like, according to Congressional statutes. Such agencies include the Federal Reserve.
Although the Supreme Court has upheld such arrangements, Reagan administration lawyers developed a more sweeping view of executive power under which such restrictions should be struck down as unconstitutional. Justices Antonin Scalia and Samuel A. Alito Jr., among others, have voiced support for that theory.
Ms. Kagan, by contrast, has argued that if Congress has explicitly forbidden presidential interference, the White House must obey that restriction.
“I accept Congress’s broad power to insulate administrative activity from the president, but argue here that Congress has left more power in presidential hands than generally is recognized,” she wrote.
Indeed, Ms. Kagan has told her students that as a policy matter she shared the views of those who believe in the strongest vision of presidential control over agencies, but that she thought their constitutional theory was “total garbage,” according to February 2002 class notes taken by Alexander Volokh, who was then a Harvard law student and is now an Emory University law professor.
Mr. Volokh’s notes, which he published on a legal blog, say that Ms. Kagan used her ambivalent views about the matter as a “pitch for honesty”: everyone, she told them, needs one area where their policy views are different from their constitutional views — and this was hers.