Elena Kagan Questions Congress's Historical Restraint in Agency Power

Historical Context of Independent Agencies

• 💡 Justice Kagan questioned why Congress has historically structured independent agencies with bipartisan leadership and a presidentially controllable chair, rather than exploring alternative structures.
• 🎯 The Respondent attorney, Amit Agarwal, suggested that the political branches have learned from experience, leading to these established structures.

The Role of Experience and Political Dynamics

• 🧠 Agarwal explained that Congress, composed of both Democrats and Republicans, understands that political power shifts, leading them to create systems designed to withstand the test of time.
• 🤝 He also highlighted that the structure of these agencies is a result of Congress acting in concert with the President, with presidents signing amendments and supporting these agencies for over a century and a half.

Presidential Complicity and Constitutional Values

• ⚠️ It is implausible, Agarwal argued, that presidents have been complicit in relinquishing vital executive power; instead, they have understood that vital interests of the American people can be served by constraints on power.
• ⚖️ This approach, he stated, is a crucial part of American constitutional tradition, which petitioners are putting at risk.

Evolving Historical Understanding

• 📜 Kagan inquired about recent historical scholarship regarding the unitary executive theory and its historical underpinnings.
• 📚 Agarwal cited Professor Nelson's essay and numerous amicus briefs, indicating a rich body of recent scholarship that suggests the history is contested, with significant evidence supporting the idea that the first Congress and President did not believe the president always had absolute removal power.
• 🏛️ He pointed to early commissions like the Sinking Fund Commission, Revolutionary War Debts Commission, and Mint Commission as examples where the president did not have absolute control.

Constitutional Text and Historical Practice

• 🔍 Agarwal argued that while precedents establish a general presidential removal power, the constitutional text does not clearly delineate boundaries between presidential and congressional power regarding removals.
• 💡 He concluded that a growing body of historical scholarship indicates the original understanding allowed for significant governmental authority to be vested in commissions not subject to plenary presidential control, some being more independent than modern administrative agencies.