In 2001, the Harvard Law Review published Presidential Administration by then-Visiting Professor of Law Elena Kagan. Drawing heavily from her experiences as a member of the White House Counsel's office and as Deputy Assistant to President William J. Clinton for Domestic Policy, Professor Kagan articulates both a political and legal theory of presidential authority over agencies in the executive branch. Professor Kagan's theory of "presidential administration" is seen as a significant departure from the established, competing theories that have been previously developed by the academic and legal literature regarding administrative law and separation of powers. Professor Kagan's article has been quite influential in these fields, cited and discussed by numerous academic and legal experts, cited by the Supreme Court, as well as in two appellate court opinions. In light of Ms. Kagan's nomination to serve as an Associate Justice of the United States Supreme Court, this report analyzes Kagan's views of executive power and the doctrine of separation of powers as laid out in Presidential Administration . This report will proceed as follows: First, it will briefly describe the constitutional and legal basis for presidential authority with respect to domestic policy, focusing on the relevant constitutional text as well as the Supreme Court jurisprudence that forms the foundation for almost all discussions of executive authority. Second, the report will provide a discussion of the well-established and competing theories of executive power, the traditional view as well as the "unitary theory of the executive." Third, the report will discuss Professor Kagan's theory of "presidential administration" and her legal responses to both of the aforementioned theories. Fourth, the report will turn to the application of Professor Kagan's theory to the field of administrative law, with an emphasis on the non-delegation doctrine and the level of deference often afforded to executive branch agencies by the judiciary, often referred to as Chevron deference. Finally, the report will provide a discussion of some of the criticism of Professor Kagan's views, especially as they relate to the President's legal authority in the areas of foreign policy and national security, both of which are expected by many to be issues that the Supreme Court will adjudicate in future terms. Article II of the Constitution establishes the office of President of the United States, creates an executive branch of government, and forms the textual basis for much of the President's authority and power. Of specific importance to separation of powers and presidential authority scholars are several clauses in Article II. The first two are found in Article II, § 1, clause 1. The first, commonly referred to as the "Vesting Clause," states that "The executive Power shall be vested in a President of the United States of America." The second establishes the executive departments, stating that "[the President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices." Additionally, there is the language of the Appointments Clause, under which the President may "nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." Finally, there is the "Take Care Clause" at Article II, § 3, which states that the President "shall take Care that the Laws be faithfully executed." In addition to the Constitution's text, there have been several influential decisions by the Supreme Court that expound upon the notion of separation of powers and presidential authority. The first is Youngstown Sheet & Tube v. Sawyer , which addresses the scope and nature of the President's implied constitutional authority. Also central to discussions of Presidential authority are three cases dealing with the President's power of appointment and removal of "Officers of the United States," Myers v. United States , Humphrey' s Executor v. United States , and Morrison v. Olson . While there is little doubt that the Constitution vests significant legal authority in the President, a central tenet of its structure is the notion that each branch of government is confined to its own sphere of influence. Thus, although the President has plentiful authority with respect to the execution of the laws, he may not exercise his powers in a manner that encroaches upon the powers and duties of the other branches. Similarly, Congress and the Judiciary arguably cannot encroach upon powers that are committed to the President and the executive branch. This bedrock principle was addressed by the Supreme Court in the seminal case Youngstown Sheet & Tube Co. v. Sawyer , in which the Court was faced with an attempt by the executive branch to usurp the legislative power of Congress. In Youngstown , the Court dealt with President Truman's executive order directing the seizure of steel mills, in an effort to avert the effects of a workers' strike during the Korean War. Invalidating the President's order, Justice Black writing for the majority held that under the Constitution, "the President's power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker." Specifically, Justice Black maintained that presidential authority to issue such an order "must stem either from an act of Congress or from the Constitution itself." Applying this reasoning, Justice Black's majority opinion determined that because no statute or constitutional provision authorized such presidential action, the seizure order was in essence a legislative act. The Court further noted that Congress had rejected seizure as a means to settle labor disputes during consideration of the Taft-Hartley Act. Given this characterization, the Court deemed the executive order to be an unconstitutional violation of the separation of powers doctrine, explaining "the founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times." While Justice Black's majority opinion in Youngstown arguably refutes the notion that the President possesses implied constitutional powers, it is perhaps Justice Jackson's concurrence that has proven to be the most influential opinion from Youngstown . In his concurring opinion, Justice Jackson articulates a three-part analytical framework for assessing the validity of presidential actions in relation to constitutional and congressional authority. Justice Jackson's first category focuses on whether the President has acted according to an express or implied grant of congressional authority. If so, according to Justice Jackson, presidential "authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate," and such action is "supported by the strongest of presumptions and the widest latitude of judicial interpretation." With respect to the second category, Justice Jackson maintained that, in situations where Congress has neither granted nor denied authority to the President, the President acts in reliance only "upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." In the third and final category, Justice Jackson stated that in instances where presidential action is "incompatible with the express or implied will of Congress," the power of the President is at its minimum, and any such action may be supported pursuant to only the President's "own constitutional powers minus any constitutional powers of Congress over the matter." In such a circumstance, presidential action must rest upon an exclusive power, and the Courts can uphold the measure "only by disabling the Congress from acting upon the subject." Applying this framework to President Truman's seizure order, Justice Jackson determined that analysis under the first category was inappropriate, due to the fact that President Truman's seizure of the steel mills had not been authorized by Congress, either implicitly or explicitly. Justice Jackson also concluded that the second category was "clearly eliminated," in that Congress had addressed the issue of seizure, through statutory policies conflicting with the President's actions. Employing the third category, Justice Jackson noted that President Truman's actions could only be sustained by determining that the seizure was "within his domain and beyond control by Congress." Justice Jackson established that such matters were not outside the scope of congressional power, reinforcing his declaration that permitting the President to exercise such "conclusive and preclusive" power would endanger "the equilibrium established by our constitutional system." Equally critical to discussions of presidential authority and the separation of powers is the concept of appointment and removal of executive branch officials. As previously noted, the Constitution specifically provides for the presidential appointment of executive branch officials, but is silent with respect to their removal from office. The Constitution's silence regarding removal authority has been the subject of intense debate and disagreement since the creation of the Department of Foreign Affairs (now known as the Department of State) by the first Congress. During debate on the bill to create the department, the House of Representatives, relying principally on arguments from James Madison, overcame considerable objection and remained silent with respect to the President's power to remove appointees, thereby implying that removal authority was reserved to the President by the Constitution. The Senate, however, much less sanguine about abdicating such power, split evenly on the question. Vice President John Adams cast the tie-breaking vote in favor of allowing the President unfettered removal powers. Notwithstanding this history, until its 1926 decision in Myers v. United States , the Supreme Court had yet to render a decisive pronouncement regarding the removal power, its extent, and location. The question presented by Myers was the constitutionality of a Postmaster's General order, acting by direction of the President, to remove from office a first-class postmaster. The removal order was issued despite the fact that in 1876 Congress enacted the following restriction on the terms of a postmaster's office: "Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law." Chief Justice William H. Taft, formerly the President of the United States, issued the opinion for a divided Court.