Many here seem to believe that Samuel Alito thinks that the President should be beyond the law and that the separation of powers must be eliminated.
This is a pretty shocking misunderstanding, not only of Judge Alito's positions, but of the "unitary executive theory" he has defended.
I admit that I am not an expert on the unitary executive theory. This diary is based on what I do conceive of its scope, and I recognize that others may see issues arising from implementation of the theory in constitutional decisions of the Supreme Court that I do not.
Nevertheless, I hope that my diary can contribute to an increased understanding of the UET, as this subject appears to be a major concern to Democratic Senators and the party's grassroots.
Let me begin by providing this long quote from the Los Angeles Times:
"Some supporters of unitary-executive theory argue that the White House has the constitutional power to remove officials of independent agencies such as the Federal Trade Commission if they disobey the president.
Article II of the Constitution says that "the executive power shall be vested in a president of the United States of America," but it doesn't precisely define that power. It says that the president shall be "commander in chief of the Army and the Navy," but separately assigns the power to declare war, raise armies and regulate the taking of prisoners to Congress. Advocates of the unitary-executive theory contend that the president's power is open-ended compared with that of Congress, noting that Article II doesn't expressly limit executive powers to those "herein granted."
"At its core, the unitary executive is the notion that the Constitution gives the president the executive power, and it includes the power to superintend and control subordinates in the executive branch," says Northwestern University law professor Steven Calabresi, who helped develop the theory in the Reagan Justice Department and has written extensively on its historical basis.
Adherents to the theory -- called unitarians -- reject the view that regulatory agencies should operate independent of political control. The White House should have final say over rules and decisions issued by the federal bureaucracy, they say.
Okay, anything hard to swallow so far? I am not sure I have too much of a problem with the idea that all agencies of the government should be politically accountable. The trick, of course, is to figure out how to impose that accountability without opening the doors to Presidential blocking of Congress' will. We know the legislative veto won't work; INS v. Chadha said so. And we know that Congressional appointment of agency heads won't work; the Morrison case said that. Not being an expert on this, I am not sure what would work.
But advocates differ on the degree of executive authority. Some believe only that Congress cannot create agencies or officers that operate outside the president's direction. Others contend the president has executive powers beyond those granted by Congress or listed in the Constitution.
Now, here is where I, like many of you, begin to have some concerns. If the power the President wants to exercise wasn't granted him by Congress and isn't listed in the Constitution, then where does he get it? I don't think there could be any other source.
Bush administration lawyers, in confidential memorandums, adopted this broader view after the Sept. 11, 2001, terrorist attacks. They contended that the "unitary" nature of presidential power over national security meant Mr. Bush could not be constrained either by treaties or laws passed by Congress that governed treatment of enemy prisoners.
In a Sept. 25, 2001, advisory legal opinion prepared for the White House, John Yoo, then a Justice Department attorney, wrote: "The centralization of authority in the president alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch."
An August 2002 memorandum signed by Assistant Attorney General Jay Bybee advised that "even if an interrogation method arguably were to violate [an anti-torture law], the statute would be unconstitutional if it impermissibly encroached on the president's constitutional power to conduct a military campaign." President Bush has since appointed Mr. Bybee to a federal appeals court.
The Justice Department later withdrew that internal legal opinion, but it has not backed away from its theory on presidential power, which also underlies the domestic surveillance program and the detention of U.S. citizens as enemy combatants. In all three instances, the president has asserted an inherent power to take actions that critics say are contrary to specific laws -- respectively, the 1994 Torture Statute, the 1978 Foreign Intelligence Surveillance Act and the 1971 Non-Detention Act.
"If the theory were wrong, there would be no way the Bush administration's antiterrorism policies could be constitutionally justified," says Mr. Calabresi, co-chairman of the Federalist Society, which he co-founded in 1982. Although the theory is closely associated with many Federalist Society leaders, Mr. Calabresi stops short of fully endorsing the Bush administration's view. "They have pushed the envelope, and if I were a judge I am not at all sure I would uphold everything they have done, although I would probably uphold most of it."
Okay, so the Administration says that it doesn't have to obey the law that Congress enacted, or a treaty ratified by the Senate, because the commander in chief power specified by the Constitution gives the President discretion and overrides the statute and/or the treaty. In theory, this may be an intellectually defensible argument. It depends on what one means by the "commander in chief" power.
I think that power means that the President is the civilian commander of the military, and that's all. It doesn't mean, in my mind, that he has authority to decide for himself, in every instance, the ways and means available to the military in conducting a war. If it did, then why would the framers have specified that Congress has the "power to raise and support armies" and to "provide and maintain a navy?" (Art. I, section 8) Why would the framers have said that Congress has the power to "declare war, grant letters of marque and reprisal, and make rules concerning captures on the land and water?" (id) Why would the framers have said that Congress may "provide for the organizing, arming, and disciplining [of the] militia and for governing such part of them as may be employed in the service of the United States"? (id)
These powers granted Congress means that, whatever the UET says or means, it cannot give the President authority to disregard statutes and treaties establishing rules for the military.
'Hotly Debated'
Judge Alito, a Federalist Society member who currently sits on the Third U.S. Circuit Court of Appeals in Philadelphia, noted in his 2000 speech that as a judge, he had had few occasions to rule on presidential authority. He observed that "what the executive power encompasses has been very hotly debated."
Judge Alito is right about this. Political scientists, lawyers, Senators, representatives, judges, and Presidents have, indeed, argued over this issue for over 200 years.
He noted that "the Supreme Court has not exactly adopted the theory of the unitary executive," instead taking a "two-track approach." The high court has protected presidential powers specifically enumerated in the Constitution, such as the right to pardon convicts and to sign or veto bills, he said. "But when it's been confronted with an inroad on the general grant of executive power to the president, it has basically engaged in balancing" of competing interests, rather than deferring to the White House's assertion of authority.
Over the past 80 years, the Supreme Court has backed the president on some questions of executive power, but not on others. In the 1940s, for example, the court upheld several Roosevelt administration policies, including the internment of Japanese-Americans and the trial of German saboteurs before a secret military commission. But in the landmark 1952 steel seizure case, the court rejected President Truman's claim that as commander in chief, he could take possession of steel mills, then closed by strikes, to ensure production of arms for the Korean War. The opinion, by Justice Hugo Black, defined the president's commander-in-chief power narrowly, "even though 'theater of war,'" he wrote, may be "an expanding concept."
In 2004, the Supreme Court cited the steel seizure case to rule that prisoners at Guantanamo Bay, Cuba, and others the president designated as "enemy combatants" had the right to challenge their detentions in court. "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," wrote Justice Sandra Day O'Connor, who Judge Alito has been nominated to succeed.
So, the Supreme Court hasn't totally bought into the UET so far. Does anyone here really believe that there are going to be five justices to overrule the long-standing approach to questions of executive authority discussed in the paragraph I just quoted?
It is very hard for me to believe that there are going to be even four votes, much less five, to overrule the Steel Seizure case.
And is it realistic and fair to believe that even Samuel Alito alone is going to be willing to opine that decades or more of jurisprudence on this issue of constitutional law must be jettisoned just to make the man who nominated him, George W. Bush, happy or to facilitate that president's personal view of how best to conduct the War on Terror, even when many informed military and political minds disagree with him?
Supporters and opponents of expansive presidential powers disagree about the intent of the Constitution's framers. In his 2000 speech, Judge Alito argued that the framers "saw the unitary executive as necessary to balance the huge power of the legislature and the factions that may gain control of it."
Critics say the framers were concerned about the unchecked power of a king, who could act without regard to elected representatives. "Some people would argue that the whole point of the Revolution was not to have a king," says Michael Froomkin, a law professor at the University of Miami.
Yes, I think the Revolution was fought, in part, to prevent undue accumulation of executive power. But how much power is undue?
Roots in the 1970s
The current debate about presidential power has its roots in the 1970s, when Congress and courts responded to controversial and in some cases illegal practices of the Nixon White House. New laws curtailing presidential power were enacted. The Supreme Court ruled that newspapers could not be barred from publishing leaked classified documents on the Vietnam War, the attorney general could not wiretap suspected subversives without a warrant, and Mr. Nixon had to surrender transcripts of his secret White House tapes to a Watergate special prosecutor.
Lawyers working under Mr. Nixon's successor, Gerald Ford, "began looking at ways they could advance presidential powers in ways that wouldn't raise the alarm bells it did during the Nixon administration," says Christopher Kelley, a political scientist at Miami University in Oxford, Ohio. Leading that effort was Antonin Scalia, who headed the Ford administration's Office of Legal Counsel and today sits on the Supreme Court.
The push to extend presidential powers continued into the Reagan and George H.W. Bush administrations, in part to contend with Congress when it was controlled by Democrats. The Clinton administration asserted a similar authority over government agencies, particularly after Republicans took control of Congress in 1994.
So other Presidents have found it politically and even legally expedient to invoke the UET or something similar. Is it fair, then, to say that they, too, sought to arrogate monarchical powers to themselves?
This Administration aggressiveness on the point is, to be sure, of a greater magnitude than most or even all of its predecessors. But that doesn't mean that the principle of the UET is any more wrong or frightening or unconstitutional, or any less correct, benign, or consistent with the framers' intent, than it ever has been.
In any case, we should know soon whether the Supreme Court will change the approach it has used for the past several decades:
In March, the current administration's efforts to further expand presidential authority may face another test at the Supreme Court. It has agreed to hear a challenge to the president's plan to try suspected foreign terrorists at Guantanamo before military commissions, a type of special court created by the president in which defendants have limited rights. At issue, among other things, is whether the Geneva Convention affords the Guantanamo prisoners further legal protections.
Last month, Congress approved legislation intended to protect prisoners, in part by providing them with limited rights to appeal. The administration is expected to cite that legislation in an effort to head off the Supreme Court review."
What can we learn of the UET from this article?
First, that it says, essentially, that all executive power under the Constitution is granted to the President.
This means that Congress would not be able to limit it or arrogate it to itself, at least where the President's specific constitutional powers are involved.
But what are those presidential powers and what do they mean? As I said above, I do not think the UET gives the President the authority to disobey the law. Thus, "don't fear the unitary executive theory."
Second, to some extent the UET holds that the President himself is ultimately responsible for the execution of the laws and, therefore, that Congress cannot cut him out of that loop by delegating authority to agencies beyond his reach.
Whether this means that independent agencies like the Federal Reserve Board are unconstitutional is not clear. Nor is it clear that all advocates of the UET agree on this question. And we don't know whether Samuel Alito has an opinion on this particular issue or what it is.
I think that the UET does probably mean that independent agencies have to be made more politically accoutable to the President. What isn't clear to me is how that would be balanced against Congress' desire to use such agencies to insulate certain activities of the government from partisan political influence. Certainly the Supreme Court has not had a problem with independent agencies since the dawn of the New Deal-era revolution led by FDR's appointees.
And I doubt that there is any more than an extremely remote chance that Samuel Alito could convince four colleagues to change that trend, even if he himself believes it should be changed - which is something no one except him knows.
Furthermore, would it be so bad to reevaluate this whole question of independent agencies? Our party has on a number of occasions, for example, been concerned about the way in which the Federal Reserve Board regulates the monetary supply. That led to the Humphrey-Hawkins Act in 1978 and it still leads, often, to tension between the Fed's anti-inflation priorities and the Democrats' low unemployment priorities. Isn't there some political good to be had in re-calibrating the way in which independent agencies operate? Hence, "don't fear the unitary executive theory."
Now, what does the UET not mean?
It cannot mean that the President is above the law because the Constitution explicitly says otherwise. The President, after all, must "take care that the laws be faithfully executed." (Art. II, section 3) Moreover, how could one possibly reconcile such an authoritarian notion with the very clear grant of authority granted Congress in so many areas by Article I of the Constitution? How could one possibly believe, with any rational basis at all, that a President is to be beyond judicial accountability when the framers clearly granted the right of judicial review in Article III, Section 2?
Samuel Alito is a smart man. It is a large leap to conclude that he does not recognize the obvious contradiction in any notion that the President should have powers beyond those granted by the Constitution or in conflict with those specifically granted the Congress and the judiciary by the same document.
You see, the whole point of the UET is to clarify the extent to which the branches' authority overlaps or intrudes on each other. The theory is not aimed at rendering the structure and language of Article I or Article III, to say nothing of the Bill of Rights, inoperative and void. Hence, again, "don't fear the unitary executive theory."
Of course I understand that there are going to be some that say, "wait, what about those signing statements? Isn't that the President just trying to ignore the law?" But the question is, what effect does a signing statement really have? I maintain that it has very little significance before the courts.
Apparently Judge Alito has said that he believes presidential signing statements are to be given weight on a scale approaching that given congressional testimony and the like, but I am not familiar with his exact words. And even if he thinks they should get the same weight as Congressional testimony or floor statements, I think it is extremely unlikely that four justices would agree with him. Indeed, Antonin Scalia is hostile to the very idea of looking beyond a statute's language and it is quite far-fetched to think that Justices Stevens, Ginsburg, Souter, and Breyer would go along with that position.
As to the idea of signing statements in general, I am not sure I have too much of a problem with them because I don't think they are banned by the Constitution.
Others may say, "well, they're not authorized, either, and if the President doesn't like the law he can veto it." But it seems to me that the purpose of a signing statement is not to let the President ignore the law or interpret in a way plainly inconsistent with its clear language. No, I think they are intended, and would be constitutional, only if used as a means of providing the courts with the executive's opinion about what the law means. As an opinion, that is not binding on the court and, furthermore, it would only be relevant if the language of the statute is ambiguous.
Now, what of this question of the President's authority to decide what the armed forces can and cannot do in wartime? Obviously Congress can set rules for the armed forces. One example of Congress doing this is the adoption of the Uniform Code of Military Justice. If the UET really means that Presidents can't be told how to have the military under their command do things, then the UCMJ would be unconstitutional. But of course no one argues that it is.
On the other hand, the framers couldn't have intended that Congress micromanage the military in wartime. Otherwise, they wouldn't have given the President the "commander in chief" power. That power has to mean that the President has some discretion, inviolable by Congress, to command the armed forces. It seems to me that this discretion cannot mean the right to disregard a law of the land. That is why I am concerned, like many here are, about warrantless wiretapping and use of interrogation tactics that violate international treaties ratified by the U.S. or U.S. law.
In any case, the courts will have to sort out whether the President can act in ways Congress has either disapproved or not expressly approved or in ways that appear to violate provisions of the Bill of Rights. Obviously folks here worry that Judge Alito will automatically defer to the President's point of view on these questions.
I think this is unlikely. First, he is clearly an intelligent man. For that reason alone he is going to make up his own mind.
Second, what reason would he have, once on the Supreme Court, to defer to Mr. Bush? He'll have a lifetime appointment and he has the judgment of history to consider.
Third, the Supreme Court does operate as a somewhat collegial institution. Judge Alito would not be insulated from the various arguments of his fellow Justices, all of which will no doubt be strong, intellectually well-grounded, and logical.
Fourth, and perhaps most importantly, it is hard to see the logic in an argument stating that the President can order the Army to torture enemy detainees even when he or a predecessor has signed a statute making it clear that the Army cannot do such a thing. There isn't anything in the Constitution that deprives Congress of the right to make this law and I don't see how the commander in chief power, even under the UET, changes that.
But what of the other claims made against Judge Alito? To be honest, I think it is absurd to believe that he "hates the Constitution," wants to make Bush or another President a "king," and desires to eliminate the separation of powers or our freedoms. I believe, in fact, that the UET, properly understood, strengthens the separation of powers because it reduces or even eliminates confusion about the extent of the three branches' authority in some areas.
Moreover, these claims are not supported by any evidence. Judge Alito is a conservative, yes, and he certainly is likely to rule on many issues in ways that I and others may find less than desirable. But that doesn't make him an authoritarian, a fascist, a thug, or part of a conspiracy to destroy the Constitution or our republic.
To say that his arguments as a government lawyer, or his opinions as a federal appellate judge, make him out to be more than a conservative is, I think, an exaggeration and even dishonest.
I welcome debate on this. I do not like the idea that a President can disregard the law and I am no fan of the imperial presidency. As most of you presumably do, I think for myself and it seems to me that the accusations made against Samuel Alito are not supported by history, a proper understanding of the law or his arguments and opinions about the law, or the facts of the cases and controversies raised in attack against him. In sum, I think that much of the attack on Samuel Alito is not justified.
Please spare me any accusation that my opinion on this nomination makes me a "troll" and refrain from announcing that I am somehow disqualified from discussing this issue or others with others in my own political party because I am not "progressive." I am a loyal Democrat, albeit one who is somewhat more conservative than a goodly number of participants here.