Back in July,
Chase noted something he found quite interesting about the nomination of John Roberts to the Supreme Court:
"Everything the pundits say about this nominee is wrong. (I know, a real shocker.) It's not about abortion or age or steady jurisprudence or compromise or a pretty resume. It's about the administration's overall strategy to expand and change the role of the executive branch in American government."
As he pointed just a few days ago, the Chief Executive himself highlighted his desire to increase his power to go above and beyond the law with his NSA wiretaps executive order.
"Meirs (sic) was, perhaps, a sneaky way to get a similar ideology on the court and Alito is a completely overt way to do so. I think the White House wants - either in this case, in Padilla, in the black sites, et al - the Supreme Court to come out and say that the executive earns the right to subvert separation of powers in times of war. And I think their nominees give them a decent chance of getting it."
Chase is absolutely right about the overt part. Sam Alito isn't just a nice conservative jurist that will appeal religious and regular conservatives, he also proudly fits the Bush-desired mold of promoting the expansion of executive authority or input.
From today's Washington Post:
"In the 1980s, the Reagan administration, like other White Houses before and after, chafed at the reality that Congress's reach on the meaning of laws extends beyond the words of statutes passed on Capitol Hill. Judges may turn to the trail of statements lawmakers left behind in the Congressional Record when trying to glean the intent behind a law. The White House left no comparable record.
In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.
Such "interpretive signing statements" would be a significant departure from run-of-the-mill bill signing pronouncements, which are "often little more than a press release," Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."
[...]President Bush has been especially fond of them, issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon. Many of Bush's statements rejected provisions in bills that the White House regarded as interfering with its powers in national security, intelligence policy and law enforcement, Cooper wrote recently in the academic journal Presidential Studies Quarterly.
The Bush administration "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress," Cooper wrote in the September issue. "This tour d' force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all.""
This legacy of expanisve executive authority, I think, is a bad thing simply because of the dangers of partisan, polarizing, and devisive politics--particularly the modern kind we are seeing. The biggest issue about the executive branch is that it is the only branch uniquely partisan to one side. Congress had the minority who can offer a check and create accountability because they are an effective opposition. The judiciary is supposed to remain apolitical, and if anything in the process fails, there is still the strict reliance on the principle of stare decisis. With a uniquely partisan executive, the potentials for abuse are amazing.
Moreover, unless there is some kind of Republican ascendancy to power, this political move is entirely misguided. If 2008 or 2012 brings about a Democratic president, then the same legacy of expansive authority just got into the hands of a Democrat and I'm sure there will be no reservation by many Democrats to use the same types of power Bush claims. Messing with democratic principles and foundations is dangerous work that partisans really shouldn't have too much involvement in. Unless you're looking to create fundamental democratic problems.
[Cross-posted at Political Forecast]