Keith Burgess-Jackson, J.D., Ph.D.

To the Editor:

John Yoo criticizes Solicitor General Elena Kagan’s views of executive
power (“An
Executive Without Much Privilege,” Op-Ed, May 26) because she
rejects the radical and tendentious “unitary executive” theory of
presidential power advanced by Mr. Yoo, and she accepts cornerstone
legal rulings like the Youngstown
Supreme Court case, in which Justice Robert H. Jackson famously
concluded that the president’s power was greatest when he acted
“pursuant to an express or implied authorization of Congress.”

Mr. Yoo’s analysis of Ms. Kagan’s views is right, but I disagree with
his conclusion. Ms. Kagan understands correctly that presidential power,
while ample, is neither unbounded nor unlimited, a mainstream view well
founded in constitutional law.

Mr. Yoo’s dismay affirms that Ms. Kagan will be guided by constitutional
text and court precedent, not by suspect theories cooked up to buttress
presidential extremism.

Robert Spitzer
Cortland, N.Y., May 26, 2010

The writer is a professor of political science at SUNY Cortland and
the author of “The Presidency and the Constitution.”