Alito Memo: President's can break the
law
Chicago Tribune
Memo draws Alito into presidential powers debate
By David G. Savage
Tribune Newspapers: Los Angeles Times
Published January 8, 2006
WASHINGTON -- Twenty years ago, a Reagan administration lawyer proposed that
when the president signs a bill passed by Congress, he should use the occasion
to declare how he interprets it.
"The President's understanding of the bill should be just as important as
that of Congress," wrote Samuel Alito in a 1986 memo. Spelling out those
thoughts "would increase the power of the Executive to shape the law," he
added.
President Bush put that idea to work two weeks ago in a little-noticed
statement that followed his signing of the much-celebrated McCain amendment,
which forbids torture and cruel, inhuman or degrading treatment of prisoners
here and abroad.
His words appeared to turn a legislative defeat into a White House victory.
Bush said he would follow the torture ban so long as it did not conflict with
his "constitutional authority ... as commander in chief" and his need to
"protect the American people from further terrorist attacks."
Moreover, Bush asserted the new law "precludes federal courts" from hearing
all claims of mistreatment from prisoners aboard, a point disputed by some
Senate Democrats.
This week, as Alito, now a federal appellate judge, goes before the Senate
Judiciary Committee, Bush's boldness in asserting the powers of the presidency
has complicated the confirmation prospects for his second nominee to the
Supreme Court, who would replace Sandra Day O'Connor.
Presidential power
Along with abortion rights, executive power has risen to the forefront in
the battle over Alito's confirmation.
Democrats are questioning whether the nominee could be trusted to enforce
the rule of law when the president says he is not bound by it.
"Does he believe in any checks on presidential power?" asked Sen. Charles
Schumer (D-N.Y.) in previewing his questions to Alito. "Does he believe that
warrantless wiretapping of Americans is constitutional?"
This issue was thrust onto the agenda last month when the president
acknowledged that he had authorized the National Security Agency, without
seeking court permission, to eavesdrop on "international" phone calls or
computer messages of persons in the United States who had "known links" to
terrorists.
The secret NSA wiretapping order is not the only time Bush has said he
stands above Congress and the courts.
In 2002, he said he could order the military to arrest and indefinitely
detain Americans who were "enemy combatants" without charging them with a
crime.
The same year, his lawyers said the president as commander in chief was free
to order harsh treatment, even torture, to obtain crucial information from
prisoners.
That White House position, and widespread reports of abuse of terrorist
suspects in U.S. military prisons, gave rise to the law banning torture. The
measure was strongly opposed by Bush, who decided to sign it after meeting with
McCain and in the face of overwhelming support by Congress.
For his part, McCain issued a terse statement saying the new law does not
include "a presidential waiver on the restrictions" against torture and inhuman
treatment.
While Alito will be caught up in the dispute over the NSA wiretapping and
the McCain amendment, it is not clear he shares the view that the president has
a nearly unchecked power to protect national security.
For 15 years, Alito has been a judge on the U.S. 3rd Circuit Court of
Appeals in Philadelphia, a court that does not get many cases testing the
limits of the president's power.
A revealing statement came in November 2000 when he spoke at a Federalist
Society meeting, reflecting on his time in the Reagan administration.
"We were strong proponents of the theory of the unitary executive, that all
federal executive power is vested by the Constitution in the president," Alito
said. "And I thought then, and I still think, that this theory best captures
the meaning of the Constitution's text and structure."
`Unitary executive'
In a sense, the "unitary executive" theory states the obvious. There is only
one president. But many of its Reagan-era proponents applied this theory to say
independent government agencies were unconstitutional because they were not
under the direct control of the president.
Since the New Deal of the 1930s, Congress has created these independent
agencies to regulate certain industries. They include the Securities and
Exchange Commission, the Federal Communications Commission and the Federal
Election Commission. The most influential independent body may be the Federal
Reserve Board, because it regulates banking and the money supply.
Alito did not say whether he believes such independent agencies violate the
Constitution, but senators say they intend to ask him about how he would apply
the "unitary executive" theory.
Yet Alito's supporters say it is unfair to link his Reagan-era memos to the
current controversies.
"In every administration--Democratic and Republican--the lawyers believe in
a robust understanding of the president's powers," said Charles Cooper, who
recruited Alito in 1986 to his legal staff under Atty. Gen. Edwin Meese. "That
doesn't begin to answer the legal separation-of-powers question he would face
as a justice. And his habit of mind is to be careful, neutral and very
balanced."
Besides presidential powers, the big issue facing Alito at this week's
hearings will likely be abortion.
Sen. Arlen Specter (R-Pa.), the committee chairman, supports abortion
rights, and said he was troubled to learn in November that Alito had voiced
strong opposition to the 1973 Roe vs. Wade ruling.
In 1985, Alito filed a job application with the Reagan White House in which
he said he was "particularly proud" of the role he had played in the
administration's effort to persuade the Supreme Court "that the Constitution
does not protect a right to abortion."
The statement will make it hard for Alito to avoid discussing his views on
abortion.
|