Alito Fails the Presidential Power Test
… The 1952 opinion, a concurrence by Justice Robert
H. Jackson, rejected President Harry S. Truman's assertion that he had the
constitutional power to seize the nation's steel mills to aid the war effort
in Korea. Whether and how Justice Jackson's analysis should apply to broadly
similar recent assertions by the Bush administration, notably concerning its
domestic surveillance program, will plainly be a central theme when questioning
of Judge Alito begins Tuesday morning.
The president's authority is at its maximum, Justice
Jackson wrote, when he “acts pursuant to an express or implied authorization
of Congress.” The administration says a resolution authorizing the president
to use military force after the Sept. 11 attacks was such authorization.
In his opening statement, Mr. Graham said he was troubled
by that argument. “I've got some problems,” he said, “with
using a force resolution to the point that future presidents may not be able
to get a force resolution from Congress if you interpret it too broadly.”
Justice Jackson's second category was “a zone
of twilight” in which Congress has taken no action. In that case, he
said, “any actual test of power is likely to depend on the imperatives
of events and contemporary imponderables rather than on abstract theories
The third category is where the president takes action
at odds with the will of Congress. A 1978 law, the Foreign Intelligence Surveillance
Act, appears to require court approval before monitoring of the sort the administration
In this third area, Justice Jackson said, the president's
power is “at its lowest ebb,” and claims of presidential authority
“must be scrutinized with caution.”
The senators on the Judiciary Committee heard our cries. Finally,
the focus turned towards presidential power.
The hearings should have focused on the limits of presidential
power yesterday, but it didn't. Maybe that's why the esteemed Senator Kennedy
is not in the room today or maybe it's just a coincidence.
Presidential power is at its lowest ebb when the president is assuming
power that the Congress has expressly taken away was Feinstein's first salvo.
Judge Alito seemed to agree with that, however, we learn from Senator Feingold's questioning
later this isn't quite the case.
Obviously, by the 1978
FISA Act's inception, the president is constrained from spying on American
citizens within the United States if he does not got to the FISA court for permission,
whether it's at the beginning or 72 hours after the surveillance has begun.
Article II of the Constitution gives the executive, the president the power,
but when Congress has enacted laws that take some of that power away, then the
president's power is at its lowest ebb at that point, drilling Justice Jackson's ruling home one more time, with feeling. However, is the president
bound by the law, the statute, when a “signing statement” has been
added to legislation? We still do not know. The specifics aren't available, so Alito wasn't asked. Without the exact signing statement and situation you cannot know the bottom line and Alito can't answer questions on specifics of how he'd rule on a case.
It is also clear that this is still an undecided judicial reality, as far as
George W. Bush is concerned, which will likely come before the courts. Our president
obviously feels that he can go beyond detention during wartime, like what happened
in Afghanistan, which is where Senator Feinstein began. There is a difference
between power during the war in Afghanistan or in Iraq and the power President
Bush is assuming during the “global war on terror.”
It's here that Senator Grassley took over to say that whatever wacky theories
Alito may or may not have on “unitary executive,” he's only going
to decide on the case before him. Alito conveniently agreed saying he'd rely
Then Senator Feingold taught us something. Judge Alito was prepared
for his confirmation hearings by Benjamin Powell and Harriet Miers, both of
whom were deeply involved in the president's illegal NSA spying maneuvers. Feingold
learned this only after receiving a requested list of who exactly helped prepare
Alito for the hearings. I ask you, does this not say it all? (UPDATE: more via Think Progress)
The Constitution trumps the statute, says Judge Alito, however, it
would be “very rare” for a president to go beyond a statute enacted
by Congress. But in the end, Judge Alito did not satisfy Senator Feingold or
myself, for that matter, because he expressly left the door open that in the
end it would depend on the particulars of the case involved.
Alito did say that the 5th Amendment prohibits the admittance of evidence obtained
by torture. Whew. Um, but… er… what if the president adds a “signing
statement” that outlines the importance of an event surrounding that coerced
testimony, which was interpreted as a “very rare” situation to which
the president felt compelled to act?
Yeah, here we go again, we just don't know what Judge Alito would do when it comes to presidential power, expressly put, the abuse of power George W. Bush has already committed. What we do know is that the lawyers who helped Bush expand his “unitary exectutive” powers, in which Alito believes, were the very people who prepared the judge for his confirmation. The saying “thick as thieves” comes to mind.