Alito: Designer of Our Return to Monarchy

by Edward_

I was thinking today as I read an anti-Roe advertisement in the Times that the battle over abortion is like the war against drugs...a farcical bit of theater that does very little to address the supposed moral issues involved and ultimately only serves to punish the poor. As this connection became clearer to me, I realized that I have been totally off-base about what I had assumed was the true danger behind Alito being confirmed for SCOTUS. Circuses like "the war on drugs" and abortion battles don't occupy the minds of the most powerful people in the world, not once the cameras are turned off anyway. And despite his rallying cry to the anti-Roe crowds that they "will prevail," it struck me that Bush's keen interest in Alito has nothing to do with whether or not only those who can afford a plane ticket to New York or Europe (if it comes to that) will be able to get an abortion in this country. It couldn't.

So what then? What was driving his support for this choice that he knows will further divide the nation? I had no idea.

Andrew Sullivan has some idea, however. In a column outlining the extraordinary use of "signing statements" by President Bush ("In eight years, Ronald Reagan used signing statements to challenge 71 legislative provisions, and Bill Clinton 105. [...] In five years, President Bush has already challenged up to 500 provisions...."), he illustrates why Bush has never bothered to veto a single bill during his presidency. He doesn't need to:

But more important than the number under Bush has been the systematic use of the statements and the scope of their content, asserting a very broad legal loophole for the Executive. Last December, for example, after a year of debate, the President signed the McCain amendment into law. In the wake of Abu Ghraib, the amendment banned all "cruel, inhuman and degrading" treatment of U.S. military detainees. For months, the President threatened a veto. Then the Senate passed it 90 to 9. The House chimed in with a veto-proof majority. So Bush backed down, embraced McCain and signed it. The debate was over, right? That's how our democracy works, right?

Not according to this President. Although the meaning of the law was crystal clear and the Constitution says Congress has the exclusive power to "make Rules concerning Captures on Land and Water," Bush demurred.

He issued a signing statement that read, "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."

Translation: If the President believes torture is warranted to protect the country, he'll violate the law and authorize torture. If the courts try to stop him, he'll ignore them too. This wasn't quibbling or spinning. Like the old English kings who insisted that Parliament could not tell them what to do, Bush all but declared himself above a law he signed. One professor who specializes in this constitutional area, Phillip J. Cooper of Portland State University in Oregon, has described the power grabs as "breathtaking."

But here's the kicker:

And who came up with this innovative use of presidential signing statements? Drumroll, please. Samuel Alito, Supreme Court nominee, way back in 1986. In a Feb. 5 memo, he wrote, "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress." That is, of course, a very strange idea--which is why, until then, signing statements had been sporadic and rare. Courts have always looked solely to congressional debates in interpreting laws Congress has passed. In laws with veto-proof margins, the President's view is utterly irrelevant.

Or at least it used to be that way. Through his systematic use of signing statements, Bush has attempted to effectively elevate himself about the law of the land. That cannot be overstated. Bush has attempted to elevate himself above the law of the land, and in doing so, by extension, above the will of the people. In other words, he has for all intents and purposes given himself wide monarchial powers.

And then, of course, the whole Harriet thing begins to make sense. Knowing that such a practice might land him in hot water in the courts one day, who better to put on the bench than his own personal pitbull? When that didn't quite fly then, however, he had an even better idea. Put the man who found this loophole in democracy on the bench. Anxious yet? Try this:

Alito, of course, didn't foresee the war on terrorism. But put a war President's power together with the new use of signing statements, and Executive clout has been put on steroids. "If you take this to its logical conclusion, because during war the Commander in Chief has an obligation to protect us, any statute on the books could be summarily waived," argued Senator Lindsey Graham, a Republican from South Carolina.

So now, we have a war without end, a loophole through any law, and a President not even remotely shy about exploiting either:

As Graham shows, this isn't a Republican-Democrat issue. It's a very basic one. A President, Democrat or Republican, has every right to act unilaterally at times to defend the country. But a democracy cannot work if the person who is deputed to execute the laws exempts himself from them when he feels like it. Forget the imperial presidency. This is more like a monarchical one. America began by rejecting the claims of one King George. It's disturbing to think we may now be quietly installing a second one.

It's time to curb this fella's power-grab, folks. Seriously...it's well past time.

Comments

[Fitz]

"""It's time to curb this fella's power-grab, folks. Seriously...it's well past time."""

You will get your chance, just have to wait till 06 & 08..

[Edward_]

I'm not so sure those are the only options available Fitz. I think it's Congress's obligation to rein him in now.

[Fitz]

But they wont- not on war powers, (perhaps they dont feel a strongly about it as you do)

As far a singing statements go... the courts can put as much weight on them as they see fit.

[cleek]

As far a singing statements go... the courts can put as much weight on them as they see fit

assuming a court ever gets to see any of these issues.

[Edward_]

the courts can put as much weight on them as they see fit.

And we're back to why Alito was nominated....

[john miller]

Edward, this is spot on.

I felt the only reason Harriet was nominated was to protect him when certain of his actions and ploicies came before the SC. Alito is even stronger in that regard.

Personally, I don't think that the SC will overturn RvW, mainly because the Republicans need to keep it there to rile up the base.

But Bush wants to make his powers unlimited, and knows that eventually it will come before the SC and wants to load it to protect himself.

FDR tried it, and a Democratice Congress shot him down. Lets see if the Republicans have the integrity to do the same.

[Fitz]

I think you guys are in the fever swamp.
This power mad dictator you are afraid of is limited to two terms.
He has made his position very clear as to the scope of exectuive power (something resonable people can & do argue about) just as Clinton did.
This is even more important in a war time situation.
Under his war powers congress needs to speak up in order to limit them.
They have not, and they wont.
I for one will wait for any review - until another president is in place.
Lets give him broad authority to prosecute this war - and only respond to specific instances of abuse that seem excessive.

He cant appoint himself dictator for life you know

[Edward_]

Fitz,

You seem to be suggesting that he can't do any damange in two years. And you seem to be building that arguement on an assertion that he hasn't done any damage yet. All of which seems to suggest that it's fine if Bush is King because in your opinion he's a benign king.

Are you really so ambivalent about being a citizen versus a subject?

[CaseyL]

"Seriously...it's well past time."

Well past, long past, and too damn late.

Really. It's done.

The only thing the Bushies have ever been about is money and power. That's why they're so damn lousy at everything else, like actually governing and actually protecting the country.

No, wait, I take it back: they are good at one other thing. Agitprop. Man, are they good at that. They got half the country lined up and tremblingly eagerly to toss the Constitution, the rule of law, and 230-odd years of history on the ashheap.

Sigh.

Today I heard the Democrats aren't going to even try filibustering Alito. They say it's because they want to keep their powder dry for the NSA hearings. I don't believe them. I don't believe they have the stomch for the fight, not over Altio or the NSA wiretaps or anything else.

I. Give. Up. I just freaking give up.

[Archie]

I'm surprised President Head Case hasn't tried to disarm the private gun owners by now. Watch for it. Maybe he's counting on his supporters outgunning his opposition. At the minimum, he's got an armed forces trained in house to house combat. That's where he's headed, right?

[Edward_]

are you joking Archie?

I hope so.

CaseyL's right. The ultimate danger here is not a nation under house arrest, but one in which the President secures enough power to essentially accumulate wealth unhindered.

[Fitz]

""" They got half the country lined up and tremblingly eagerly to toss the Constitution, the rule of law, and 230-odd years of history on the ashheap. """

This is the type of hyperbole Im talking about (talk about agiprop)
Dont get lost in the fever swamps people..

These things (presidential powers) naturally expand and contract in a democracy. (certainly in a time of war)
Most of what this administration is straining against are the rules and mindset imposed after the revelation of the abuses of authority of the Johnson & Nixon Administration..

This is a different administration, a different age and certainly a VERY differnt kind of WAR..

Give it some time- history and the people will sort any abuses out (if their are any)
We may just find he was not aggresive enough!

[Edward_]

Fitz, I hear a good deal of your world view from very well meaning moderates and conservatives.

The issue for me is that I might accept this if there were not other indications he's making his friends obscenely rich through it all.

Follow the money and none of this looks benign.

[M. Scott Eiland]

CaseyL's right. The ultimate danger here is not a nation under house arrest, but one in which the President secures enough power to essentially accumulate wealth unhindered.

You mean he's trying to take out the IRS?

It's interesting to see what some people really fear--rich people keeping more of their own money.

[Edward_]

rich people keeping more of their own money.

I'm not so sure the increase in profits the arms makers in this country are enjoying or record profits in the energy sector was originally their money, Scott...are you saying my tax dollars were somehow always theirs?

[M. Scott Eiland]

I'm not so sure the increase in profits the arms makers in this country are enjoying or record profits in the energy sector was originally their money, Scott...are you saying my tax dollars were somehow always theirs?

So, is your objection a matter of policy, or just that you don't like seeing people making a lot of money? Your emphasis on accumulation of wealth strikes me more as coveting the wealth rather than objecting to (from your POV) questionable military and energy policies.

[Paul]

The ultimate danger here is not a nation under house arrest

The ultimate danger is, and always has been, not nation under house arrest, but the "mexification" of our government, its transformation into a body of corrupt, incompetent, inefficent authoritarian caudillos largely of one party, which ever party that is. And if that's what the Republicans turn this country into, there's no reason why the Democrats won't harvest the spoils if they ever return to power.

I continue to be amazed at how people, who, ten years ago saw Janet Reno under every bed, now happily welcome and/or excuse every attempt to expand the scope of executive power. They could be hypocrites, but I suspect that they really just don't give a damn.

[Jesurgislac]

M.Scott: So, is your objection a matter of policy, or just that you don't like seeing people making a lot of money?

Scott, are you saying that you have no objection to any individual making a lot of money from tax dollars, or is it just the people at the top of military industries that you have no problem becoming wealthy from tax dollars?

[Edward_]

or just that you don't like seeing people making a lot of money? Your emphasis on accumulation of wealth strikes me more as coveting the wealth rather than objecting to (from your POV) questionable military and energy policies.

er...OK...coveting wealth, yup, you've nailed me Scott...

moving on.

One of my objections is that the president is systematically enabling his friends in the energy sector and arm industry to take and take and take from the public kitty. He's pro-big business, first and foremost, and now, under the guise of trying to balance the budget, he's slashing public programs in order to make them even richer. That may suit you fine...but when I look at images of what happened in New Orleans, and realize that's the price we pay for not funding public programs better, it makes me a bit sick to my stomach.

My other objection, though, and the point of this post you're conveniently not addressing, is that he's also systematically removing any check or balances on his power to do so.

No matter how much you believe he's right to do the first, I can't believe you support his doing the second, Scott.

[M. Scott Eiland]

Scott, are you saying that you have no objection to any individual making a lot of money from tax dollars, or is it just the people at the top of military industries that you have no problem becoming wealthy from tax dollars?

Government contracts aren't welfare--not if they're performed honestly. If they're not performed honestly, that's as wrong as it would be if any other contract was performed dishonestly.

[Cue "Halliburton" mantra]

[Edward_]

Government contracts aren't welfare--not if they're performed honestly.

So you agree that in our present circumstances, then, they are welfare?

[M. Scott Eiland]

er...OK...coveting wealth, yup, you've nailed me Scott...

Not personally--coveting it on behalf of the government for uses that you believe are better than those that the owner has for it--it's the Left's version of Original Sin these days.

[cleek]

They could be hypocrites, but I suspect that they really just don't give a damn.

i suspect it's both. they bitch about things they don't actually care about, so long as it's the other team that's doing them.

that's just human nature, though; of course My team is better than Your team, i wouldn't have chosen it otherwise (and i'm a smart boy).

it's a shame people are so horribly tribal about everything.

[M. Scott Eiland]

[Cue "Halliburton" mantra]

So you agree that in our present circumstances, then, they are welfare?

And there goes the band! ]:-)

[Edward_]

That's a nice attempt at derailing the thread, Scott, but I'm gonna ask you to address my central point in this context. Is it OK for the president to systematically remove the check and balances that keep him from awarding government contracts dishonestly?

[cleek]

coveting it on behalf of the government for uses that you believe are better than those that the owner has for it--it's the Left's version of Original Sin these days.

such a fine man of straw! it'd be a shame if anything happened to him.

[Anarch]

Not personally--coveting it on behalf of the government for uses that you believe are better than those that the owner has for it...

I loathe dictionary flames, but have you looked up "coveting" recently?

[M. Scott Eiland]

I loathe dictionary flames, but have you looked up "coveting" recently?

Given the intensity with which lefties loathe tax cuts, it certainly "looks" like coveting, even if they ultimately want the money for the government (and their preferred programs therein) rather than themselves. Dictionary flames are to be eschewed because they tend to be, well, lame.

[Fitz]

I dont understand why the most powerfull man in the world who is already a millionare (Cheney to)

Would crassly go around and enrich their friend for no other reason except they can.

Were is the press on this unprecedented graft... and whats the purpose of it all.

[Edward_]

Were is the press on this unprecedented graft... and whats the purpose of it all.

Last opportunity to do it, Fitz. Look East, my friend. As the tagline for 'Why We Fight' notes, nowhere is it written that the US empire lasts forever.

[Fitz]

I agree.. It is an empire and there is no reason to think it will last forever.

I have not read "Why we fight"
What is the Thesis?
Im almost finished with Imperial Grunts.

I trust are president on matters of National Security (just as I trusted Clinton - but though most of his policy was belated and weak)

[Paul]

Fitz, are you faux-naïf, or an honest-to-goodness naïf?

[Edward_]

trust are president on matters of National Security

I wish I shared your faith. He's done nothing to earn it in my opinion.

[Fitz]

Paul
I never saw Janet Reno under every bed.

Paul Are a faux paranoid or and honest to goodnesss paranoid?

[Edward_]

Fitz, "Why We Fight" is a documentary film...you can watch the trailer here.

[Paul]

Are a faux paranoid or and honest to goodnesss paranoid?

If wanting good government and a reasonable limitation on the scope of executive authority is what Republicans are calling "paranoid" these days, then I must be. Strange, I always thought conservatives wanted those things, too.

[Gromit]

Fitz: I dont understand why the most powerfull man in the world who is already a millionare (Cheney to)

Would crassly go around and enrich their friend for no other reason except they can.

There are folks out there who already have a lot of money but who are nonetheless still motivated to accumulate even more money? And some of these mythical beasts go about their self-enrichment in crass or unethical ways? Crazy talk!

[Edward_]

They only want that when there's a Democrat in the White House Paul...

[Edward_]

I retract my last statement seeing now that the antecedent was generically "conservatives"...only those conservatives not alarmed by Bush's systemic use of signing statements were meant.

[M. Scott Eiland]

That's a nice attempt at derailing the thread, Scott, but I'm gonna ask you to address my central point in this context. Is it OK for the president to systematically remove the check and balances that keep him from awarding government contracts dishonestly?

Since:

1) I don't acknowledge that what you say is happening is happening, finding this reading to be alarmist at best and outright paranoid at worst, and;

2) because I admit to being heartened that this seems to be your idee fixee rather than the more typical for the left these days: "Chimpy McHitlerburton is a fascist who wants to throw us all into camps and kill innocent foreigners!",

I'm going to decline, nod, and head to work.

[Edward_]

I guess you may not see this Scott, but if you find the time, could you square "I don't acknowledge that what you say is happening is happening" with the fact that "In five years, President Bush has already challenged up to 500 provisions"?

I should warn you though, if you fall back on the so-called "war on terror," I may just guffaw.

[Bernard Yomtov]

Given the intensity with which lefties loathe tax cuts, it certainly "looks" like coveting, even if they ultimately want the money for the government (and their preferred programs therein) rather than themselves.

At least "lefties" are willing to pay taxes for the programs they prefer. "Righties" seem to want to fund their preferences by borrowing money, thereby avoiding paying for them even partially, and shifting the cost onto future taxpayers. I'd say that's the more "covetous" position of the two.

[wilfred]

Great post Edward, but we won't get any relief from Congress. They are bought and paid for at present.

If anyone gets the chance, please see "Why We Fight" in NY and LA now and wider release in February. It's brilliant.

http://www.sonyclassics.com/whywefight/

[Barry]

john miller:
"Personally, I don't think that the SC will overturn RvW, mainly because the Republicans need to keep it there to rile up the base."

RvW doesn't really need to be overturned, just gutted. Think of how long the Civil Rights Amendments were worthless. Also, when some people get to the point where they can seize a long-sought victory, keeping them from it is very hard.

"But Bush wants to make his powers unlimited, and knows that eventually it will come before the SC and wants to load it to protect himself."

"FDR tried it, and a Democratice Congress shot him down. Lets see if the Republicans have the integrity to do the same."

After seeing this decade of a GOP Congress, do you really count on that? They've already given Bush so much, time after time. Financial corruption and right-wing social engineering seem to satisfy them.

[Francis]

Why is it that this term "Chimpy McHitlerburton" is virtually always used by conservatives referring to liberals/left and virtually never by liberal / left itself?

as to the rest of that comment, i'll note that depositions are going on right now under seal in a lawsuit brought by detainees held in the Metropolitan Detention Center post 9/11 and then deported, on various constitutional grounds.

[cleek]

Why is it that this term "Chimpy McHitlerburton" is virtually always used by conservatives referring to liberals/left and virtually never by liberal / left itself?

an imaginary is so much easier to defeat than the real one.

[john miller]

Barry: "After seeing this decade of a GOP Congress, do you really count on that? "

Since I really do try to be a realist, despite my "Chimpy McHitlerburton" ways of thinking, I don't count on it.

We have heard a lot of talk from the Grahams, Specters and McCains on the right, but I have not seen any real willingness to do anything about it.

And I agree about the gutting of RvW, rather than actually overturning it. The naive middle which doesn't want to see RvW overturned will stay content and quiet and the radical right can still be tossed the raw meat to keep them complaint with the overall agenda.

[cleek]

an imaginary is so much easier to defeat than the real one ??

the imaginary enemy is so much easier to defeat than the real one.

on no other board do i make so many typos & spellos. blech.

[Barry]

Francis, people who live in glass houses should perhaps not throw stones, but the rightwing in this country has learned that, if one is covered in mud, throw as much mud as possible. That way, both sides have some mud on them, and many can't/won't distinguish between the source and the target.

[Nell]

Despite all the rest of my serious policy differences with Judge Alito, the dread I feel at his looming confirmation has to do with his views of executive power.

You'd think John Warner, a man who's been embroiled in a battle with the White House over this very issue as it relates to detainee torture, would be concerned. But no. Despite on-point pleas from constituents, he's lining up with the rest of his party to take the step that will make the Senate irrelevant.

[Ginger Yellow]

"And then, of course, the whole Harriet thing begins to make sense. Knowing that such a practice might land him in hot water in the courts one day, who better to put on the bench than his own personal pitbull? "

What do you mean, begins to make sense? It was obvious from the start that was why he nominated her - the only surprise was that he didn't nominate Gonzales (I still haven't worked that out). It's not as if there wasn't a ton of cases that could have landed Dubya in jail, or at the very least destroyed his and Cheney's vision of a monarchical presidency, long before the NSA stuff came out.

[john miller]

I think the reason he opted out on Gonzales is that it was pretty obvious Gonzales would not have done anything to RvW, whereas Harriet was an unknown.

[muddy]

I don't think he ever expected ol' Harriet to be confirmed or even have hearings. They just thrust her out, unqualified, so that the *real* nominee, Alito, would look good in comparison. Then everyone is supposed to be relieved, because he at least has some experience. She was nothing more than a feint.

[Pooh]

Muddy,

Aye. And I (and many others) said as much at the time.

[Fitz]

With the Harriet Miers conspiracy you now have vered back off into the fever swamps again. Dont give the white house that much Machavelian credit. (things dont/cant work that way)

As far as "why we fight" it may be brillant but its brillant prophaganda.
Yes their is a military industrial complex in this country - but it does not care that we go to war, just that we buy its products.
It biggest confirmable abuses is how it forces through unneccesary weapons systems (like the FY22) and spreads it contracts over multiple congresional districts and states to insure funding.

No one has ever shown me how it started or has dictated any foreign policy of this or any other administration.

[cleek]

the fever swamps again

dude, pick a new phrase. that one's beat.

[Edward_]

I think that's a fair enough question, Fitz, about how the interest in the military industrial complex has in making money translates into real wars. I agree that the assertion that that interest automatically leads to wars is a bit hard to swallow without more evidence. But aren't you just a bit suspect that Cheney's company got all the no-bid contracts? Even just a teensy-eensy bit?

I mean, I know you trust the president, but we are talking about $750,000,000 dollars a year here.

[Larv]

Yes their is a military industrial complex in this country - but it does not care that we go to war, just that we buy its products.

And there is of course no relationship between war-fighting and increased consumption (and purchase) of war materiels. Right.

No one has ever shown me how it started or has dictated any foreign policy of this or any other administration.

Yeah, that's crazy talk. It's not like any members of the current administration have any relationship to the military-industrial complex. No sirree.

[Edward_]

no...wait...it's $750,000,000,000 a year.

[Niels Jackson]

Sullivan had said:

And who came up with this innovative use of presidential signing statements? Drumroll, please. Samuel Alito, Supreme Court nominee, way back in 1986. In a Feb. 5 memo, he wrote, "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress." That is, of course, a very strange idea--which is why, until then, signing statements had been sporadic and rare. Courts have always looked solely to congressional debates in interpreting laws Congress has passed.

In the above passage, not a single proposition is true. In particular, Alito wasn't the first to have the idea of presidential signing statements. He was tasked to write that memo based on what his bosses had planned. His memo was a lot more concerned with the theoretical problems of such statements, and his recommendation was that the President should issue such statements only where there was genuine ambiguity, not where the President disagreed with Congress. Also, there are plenty of courts that have looked at signing statements as an indication of how the President interpreted a given law. There's nothing whatsoever "strange" about it.

[Niels Jackson]

Nothing that I said is original, by the way. Do a little research; there are lots of smarter people than me who have pointed out how ridiculous it is to tie Alito's 1985 memo to Bush's signing statement on the torture bill.

[Paul]

In particular, Alito wasn't the first to have the idea of presidential signing statements.

Well, what part of Sullivan's "which is why, until then, signing statements had been sporadic and rare" suggests that he asserts Alito was the first? Furthermore, was the memo dated "Feb. 5"? Or is Sullivan wrong about that, too. You've already ascribed to Sullivan an untrue statement he didn't make, and I'm going to assume he got the date correct, so your wholesale dismissal of Sullivan isn't very credible.

to tie Alito's 1985 memo to Bush's signing statement on the torture bill.

Maybe Alito doesn't approve of Bush's signing "philosophy"--he should say so if he doesn't. The important question is does Bush think Alito's theories justify his signing statement on the torture bill?

[Edward_]

well, er...could you point to just one for us Niels?

e

[Niels Jackson]

Paul -- you might want to refer to the opening sentence of Sullivan's statement. That's where he asserts that Alito "came up with" this use of signing statements. "Came up" is a English phrase that is used to mean, "had the idea for," or "invented," or "originated."

Edward -- this is all available elsewhere. Just a moment or two on Google is all it takes.

A couple of pointers: There are several court decisions that relied on Presidential signing statements. See the Clinton administration's memo here. So Sullivan was wrong about that.

For an argument that Presidents should resist congressional interference with their own authority, here's another memo that was written for the Clinton White House. So the idea of signing statements is not as "strange" as Sullivan pretends.

As for Alito being the first to have the idea, he himself testified:

I think the most important part of the memo that you're referring to is a fairly big section that discusses theoretical problems. And it consists of a list of questions. And many of the questions are the questions that you just raised.

And in that memo, I said, "This is an unexplored area, and here are the theoretical questions that" -- and, of course, they are of more than theoretical importance -- "that arise in this area."

That memo is labeled a rough first effort at stating the position of the administration. I was writing there on behalf of a working group that was looking into the question of implementing a decision that had already been made by the attorney general to issue signing statements for the purpose of weighing in on the meaning of statutes.

And in this memo, as I said, it was a rough first effort, and the biggest part of it, to my mind, was the statement: "There are difficult theoretical interpretive questions here, and here they are." And had I followed up on it -- and I don't believe I had the opportunity to pursue this issue further during my time in the Justice Department -- it would have been necessary to explore all those questions.

So it wasn't Alito's idea; there's nothing per se "strange" about looking to the President's understanding of a law; there are indeed courts that have looked at presidential signing statements.

So what's left of Sullivan that is accurate? Oh right: As Paul points out, Sullivan probably got the DATE of the memo right. Um, yeah, that's impressive, alright.

[Paul]

you might want to refer to the opening sentence of Sullivan's statement.

You might want to, too, chief. Sullivan writes "And who came up with this innovative use of presidential signing statements?" That sentence and the phrase that follows "which is why, until then, signing statements had been sporadic and rare" make it very clear that Sullivan doesn't think--as you say he does--that Alito invented signing statements. Sullivan is writing about using those statements to justify a conception of extremely broad executive authority.

No one here thinks Alito invented signing statements, not me, not Sullivan. As I wrote before maybe Alito doesn't approve of Bush's signing "philosophy"--he should say so if he doesn't. The important question is does Bush think Alito's theories justify his signing statement on the torture bill?

Sullivan probably got the DATE of the memo right. Um, yeah, that's impressive

Well, considering you denied him that at first, the man should take what he can get, right?

[cleek]

As I wrote before maybe Alito doesn't approve of Bush's signing "philosophy"--he should say so if he doesn't.

too late now. he's going to be confirmed.

the Dems had their chance, but blew it giving longwinded speeches.

[Niels Jackson]

OK, Paul, but Sullivan is still wrong that Alito was the first to have the idea to "use" signing statements in that way. Reagan's Attorney General ALREADY had that idea before Alito started the job -- as Alito testified.

[xanax]

Any of you Con Law wizards out there know what the process would be that would cause this issue to be adjudicated?

If a president issues a signing statement re how his administration will interpret a law and then applies that law according to the principles he/she established in the signing statement, who would or could mount a challenge to that interpretation in order to land the issue of the legitimacy or applicability of a signing statement (as a de facto part of the law itself) before SCOTUS?

[Katherine]

Well, I believe the monarchists still have at most three votes when it comes to U.S. citizens (Thomas, Roberts (who seems much too nice and smart for this nonsense but the Hamdan opinion he signed was very bad news), Alito) and four votes when it comes to non-citizens (those three plus Scalia, who might not even think what the President is doing to non-citizens is legal but is very very quick to find that the Court can't hear the case.)

That said--I don't like the most basic things about our Constitution hanging on Anthony Kennedy's consistency & John Paul Stevens and Ruth Bader Ginsburg's good health.

More troubling to me than Alito's memo about signing statements or his support for the "unitary executive" are what he said, and wouldn't say, at the hearings. Feingold laid it out today:

At the hearing I and other senators repeatedly asked Judge Alito whether the president can violate a clear statutory prohibition such as the Foreign Intelligence Surveillance Act and the ban on torture. He never answered the question. We kept trying. He returned again and again to a formulated response to told us nothing at all. He said the president must follow the Constitution and must follow the laws that are consistent with the Constitution.

Mr. Chairman, any first-year law student could tell you that. That kind of stock phrase, which Judge Alito repeated over and over again, tells us absolutely nothing, absolutely nothing about his view of whether the president can, consistent with the Constitution, violate a criminal law.

Judge Alito did point to Justice Jackson's three-point analysis in Youngstown, and of course that is an appropriate framework. But merely citing Youngstown doesn't tell you anything about how he would apply that framework.

FEINGOLD: Even when presented with the alarming hypothetical of whether a president can authorize a murder in the United States, Judge Alito would say no more than just citing the Youngstown three-part analysis of Justice Jackson.

These practiced and opaque responses gave me no reassurance about Judge Alito's views on these issues. But what troubled me even more was that he repeatedly, and in some cases gratuitously, Mr. Chairman, raised issues of justiciability and the political question doctrine. That is, he seemed to question whether the courts can even weigh in on these serious legal battles between the legislature and the executive.

Although he said he thought the courts could address questions involving individual rights, Judge Alito's instinct in discussing these historic issues was to focus on whether the courts even had a role to play. It wasn't to talk about the gravity of the issues at stake or our system of government, but to question simply whether he as a judge could even participate in the resolution of such constitutional conflicts.

Mr. Chairman, I found that very disturbing.

He also misstated what Jackson's concurrence in Youngstown says, as Leahy pointed out. Not reassuring.

[Theway2k]

In seasons of war a nation needs a strong executive. Deliberation, whether legislative or judicial takes time, time is an element that leads to indecision. An indecisive executive might be the difference between tragedy or victory. I prefer victory. My concern is this: when the reasons for war have ceased, can the executive return to checks and balances? The danger is if the answer is no, then an executive will have crossed a rubicon to Caesarism.

[cleek]

"A time comes when silence is betrayal." That time has come for us [...].

The truth of these words is beyond doubt but the mission to which they call us is a most difficult one. Even when pressed by the demands of inner truth, men do not easily assume the task of opposing their government's policy, especially in time of war. Nor does the human spirit move without great difficulty against all the apathy of conformist thought within one's own bosom and in the surrounding world. Moreover when the issues at hand seem as perplexed as they often do in the case of this dreadful conflict we are always on the verge of being mesmerized by uncertainty; but we must move on.

Some of us who have already begun to break the silence of the night have found that the calling to speak is often a vocation of agony, but we must speak. We must speak with all the humility that is appropriate to our limited vision, but we must speak.

Eloquent words, from the late Rev. King (Riverside, 1967).

i can only imagine having that kind of optimism about one's country. all i see are dark days ahead.

[Niels Jackson]

That is, he seemed to question whether the courts can even weigh in on these serious legal battles between the legislature and the executive.

Geez. Ever heard of checks and balances?

These Democrats are amazing. (Plus Specter.) When the subject is congressional power, they are offended to no end that the Supreme Court might EVER say that ANYTHING is beyond Congress's constitutional authority. Commerce clause, schommerce clause. As far as Congress is concerned, the Constitution is a complete blank check.

But as soon as the subject is presidential power, whoa nelly, stop the horses. Then they are horrified if anyone ventures the most hesitant suggestion that the Supreme Court doesn't ALWAYS have the final say (i.e., because some issues are non-justiciable). Here, the Democrats appear to believe that the Court really is SUPREME, in that it absolutely has to have the final word over every possible issue.

[Katherine]

Niels, I would rather we had an executive willing to comply with its legal obligations, and a Congress willing to hold them to account, but we don't have either of those things. We have an administration that feels free to disobey any statute it feels like until there is a court order potentially enforceable by the contempt power for them to obey. And we have a Congress that won't do a damn thing about it.

Anyway, I agree with--is it Brennan in Baker v. Carr?: the political question doctrine is about what remedies the court has the power to order and about what powers (like the pardon, like impeachment) that Congress never meant the courts to review. But there's precious little in the Constitution that suggests that the founders wanted it to be systematically underenforced, and that's what too much of this stuff--standing, justiciability, etc.--has become. The idea that whether the President has to obey any laws at all in wartime is a question committed to the President's discretion is just ludicrous.

And it's not like Congress can't step on the executive's prerogatives either. Chadha springs to mind immediately but I'm sure there are others.

For that matter I don't know where on earth you get the idea that liberals want Congress to be able to do whatever it wants; I thought we were all about favoring unelected judges over the people's representatives? I can't keep this stuff straight.

[CharleyCarp]

xanax, there are any number of ways the import of a particular signing statement could come up in a case. Suppose some CIA agent tortures some suspected AQ guy to death. Engaging in the torture under direct Presidential order. Suppose further that this is revealed in a tell-all book by the guy's bitter ex-wife 3 years from now. And some new US Attorney decides to prosecute. CIA guy raises presidential order + signing statement in defense, and the district court says, 'nice try, but the statute is unambiguous. Welcome to Club Fed.'

[CharleyCarp]

Or even simpler, someone that gets tortured brings an action for assault. Torturer challenges application of DTA -- court has to decide whether (a) Pres did authorize conduct (if not, then the signing statement is irrelevant) and (b) Pres can authorize conduct.

This too might not come during the Bush administration. There's that guy who was mistakenly thought to be Ivan the Terrible, but turned out (iirc) merely to be John the Pretty Awful -- it took decades for him to be brought to justice, but his victims didn't give up easy.

[xanax]

Thanks for that, Charley. Not being a lawyer I am totally unfamiliar with how the process... well, proceeds. Is a US Attorney the only one who can prosecute? And must he/she first be given a case presented by some interested/injured third party? Or can the Congressional Judiciary Committee also investigate violations of the law by the executive and prosecute? Or is that simply what the old girls call "Impeachment Hearings?"

Wish I knew more about the process. I've got a feeling the sparks will be flying furiously around the Capitol following the midterm elections. And I think this president is in for a very bumpy ride.

[CharleyCarp]

Xanax:

Congress can investigate, but cannot prosecute or adjudicate. Other than through impeachment, which is so unlikely as to be useless for discussion. No one in her/his right mind is going to testify in Congress about his/her own lawbreaking, unless immunity is granted. If lawbreaking of others is revealed, though, the US Attorney for an appropriate district can try to get a grand jury to return an indictment. As the US Attorneys are presidential appointees, this may not be likely in the short term.

I would expect, though, that civilians (CIA or contractors) are going to be smart enough to understand that their liability exposure is going to outlast both Bush and the WOT, and so will stop short of violating the DTA unless they're really forced.

Soldiers can of course be prosecuted for violating the UCMJ (or the DTA), in the military justice system. I would expect that if a prosecution is commenced (and I think this would be less political than whether a US Attorney will do it), a smart defense attorney will argue the inapplicability of the DTA, and I'd expect a military court to rule for the prosecution on that. Soldiers will know this too, and so I'd expect them to stop short of violating the DTA -- unless they're basically lawless. (There are rapists and thieves in uniform, of course, and the fact that these things are illegal doesn't prevent them entirely).

So what's the signing statement really for, then, if no thinking person on the front lines is going to rely on it? Swagger, for one. Preservation of the illusion of presidential perogative for another.

[Niels Jackson]

For that matter I don't know where on earth you get the idea that liberals want Congress to be able to do whatever it wants; I thought we were all about favoring unelected judges over the people's representatives? I can't keep this stuff straight.

Where'd I get the idea? From the very place I mentioned: The Alito hearings. So I'll mention it again: The Alito hearings. Where -- if you pay any attention -- the Democrats and Specter were utterly appalled that Alito might ever venture to suggest that Congress has ANY limits on its authority to regulate every intrastate non-commercial item in America.

You're getting confused over the fact that while liberals promote an omnipotent Congress (for Commerce Clause purposes), they also promote aggressive interpretations of Equal Protection, Due Process, and the First Amendment, particularly as to STATE governments.

There's no contradiction in observing the palpably obvious fact that: 1) When it comes to the Commerce Clause, liberals believe that Congress is given a completely blank check, and that it is horrifying to contemplate ANY limits on governmental power; 2) When it comes to Due Process, liberals are happy (usually) to have judges make up new constitutional rights (e.g., abortion, gay marriage) and impose those rights on an unwilling citizenry.

Do you disagree with either of those observations? If so, please point out: 1) liberals who want the Commerce Clause to have some real teeth in it; or 2) liberals who don't want judicial protection for abortion.

In any event, this is all beside the point, which is that if Congress really wants to monitor, check, and balance what the President does, they should get busy doing just that, rather than sitting around whining that the Supreme Court doesn't do all of their work for them.

[Katherine]

One more time, with feeling:

There are lots of different people in Congress. If the majority of them refuse to act as a check and balance, it's not really the minority's fault. Russ Feingold can get as busy as he wants to be--the majority will rarely hold hearings, never vote for a subpoena, never vote for an independent investigation with subpoena power, etc. etc.

There is a very very slim chance that they will vote for a statute checking the president. But if that happens, this president claims the power to secretly violate it. Not much Congress can do about that without the courts' help. They could refuse to fund things but Presidents have been known to cheat about that too, and anyway, that is another thing the Republican majority will never do.

[Larv]

Niels, wasn't it the current administration that relied on a commerce clause argument against medical marijuana in Raich v. Ashcroft? I don't think Democrats are the only ones occasionally enamored of the commerce clause.

[hilzoy]

Larv: not to mention the fascinating assumption behind Ashcroft's position in the Oregon case: that Congress has the power to delegate to the Attorney General the power to decide what counts as 'medical practice'.

[Paul]

You're getting confused over the fact that while liberals promote an omnipotent Congress (for Commerce Clause purposes)

What a wonderful flair for hyperbole you have, Niels. Do you have any evidence these liberals who seek an "omnipotent" Congress exist, or is it like your mistaken reading of Sullivan, just the result of haste and enthusiasm? In general, I abhor any politician, of whatever party, who suggests that she or her office can act without limits; but people will naturally disagree on precisely what those limits are and how they apply. Want to argue Congressional authority should be severely restricted? Make it. Want to make an argument for strong executive authority, then make one. Merely asserting TEH LIBERALS do X, so the President should get what he wants is a sad reason to bloat the executive.

[CharleyCarp]

I didn't watch all or even most of the Alito hearings, but would be surprised if Sen. Specter, or anyone else, expressed hostility to the notion that the Commerce Clause has some limit. More likely, I think they'd have been hostile to the notion that Title VII, or the ESA, for example, are beyond that limit.

So, Mr. Jackson, tell us your position. Do you think Congress lacked authority to enact Title VII?

And, wrt judicial vindication of the rights of individuals as against intrusion by government, do you believe that Loving v. Virginia was wrongly decided?

[Niels Jackson]

OK, I'll admit that not 100% of liberals believe that the Commerce Clause has no limits whatsoever. I've just personally never heard of any exceptions to that rule. Perhaps you could name some? Or even take that position for yourself (rather than referring to the fact that anonymous liberals somewhere might conceivably believe that there are structural limits to congressional power.)

In short, I've never heard of 1) a liberal legal scholar, or 2) a liberal politician, who defends the notion that the Commerce Clause imposes even the most trivial limits on congressional power. To the contrary, as you saw in the Alito hearings, liberals were, without exception, trying to demonize Alito for having dared to follow the Supreme Court's Lopez decision on that issue.

So again: Where are the exceptions?

[Niels Jackson]

I don't know how this happened, but my response to Hilzoy (Jan. 25 at 7:28 pm) shows up as being before that post.

Katherine: If the majority of them refuse to act as a check and balance, it's not really the minority's fault.

Who said it was? My point is that it's certainly not the SUPREME COURT'S fault that not everything is justiciable, that the Court isn't a bunch of Platonic guardians who can issue sua sponte rulings on everything that the government does, etc.

Larv: There's a reason that "tu quoque" is a fallacy. Look it up.

CharleyCarp: If you don't know anything about the Alito hearings, why bother to speculate? You can look up the transcripts on the Washington Post's website. FYI: The Senators repeatedly inquired about Alito's Rybar opinion, where Alito merely followed the Supreme Court's decision in Lopez. Lopez said: Congress can't criminalize the mere intrastate possession of guns near a school. Following Lopez, Alito said: Congress can't criminalize the mere intrastate possession of machine guns. It was basically the same issue. And Alito went to great pains to point out that Congress had a very easy solution: Include a provision in the law looking to whether the gun had traveled in interstate commerce. This would work in 100% of cases.

Even so, the Senators repeatedly adopted a tone of horror that Alito would dare to suggest that there is anything that Congress can't regulate.

Again, the overall observation I was making is: Isn't it interesting that when it comes to Congressional power, the Senate's liberals (is that specific enough?) act horrified that the Court would ever set any limits. But when it comes to presidential power, they act equally horrified that the Court would NOT set limits in all cases.

A very interesting dichotomy in attitude there, and not a one of you seems to be willing to defend it.

[Niels Jackson]

Just for the sake of people who keep completely missing the point, I'm NOT arguing that: 1) the Court should aggressively enforce the Commerce Clause; or 2) the Court should not enforce limits on presidential power. I'm not trying to argue the substantive merits of EITHER position. Indeed, if I took the positions that commenters mysteriously ascribed to me above, I'd be just as hypocritical as the Senate Democrats (but in the opposite direction).

[CharleyCarp]

I just re-read http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=379&invol=241>Heart of Atlanta Motel v. US, a fine exploration of the limits of the Commerce Clause. I suppose Justice Clark can safely be called a liberal, but I'm not sure the label is appropriate for Chief Justice Marshall.

I guess this passage of the majority opinion does lend credence to Mr. Jackson's point:

The same interest in protecting interstate commerce which led Congress to deal with segregation in interstate [379 U.S. 241, 257] carriers and the white-slave traffic has prompted it to extend the exercise of its power to gambling, Lottery Case, 188 U.S. 321 (1903); to criminal enterprises, Brooks v. United States, 267 U.S. 432 (1925); to deceptive practices in the sale of products, Federal Trade Comm'n v. Mandel Bros., Inc., 359 U.S. 385 (1959); to fraudulent security transactions, Securities & Exchange Comm'n v. Ralston Purina Co., 346 U.S. 119 (1953); to misbranding of drugs, Weeks v. United States, 245 U.S. 618 (1918); to wages and hours, United States, v. Darby, 312 U.S. 100 (1941); to members of labor unions, Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); to crop control, Wickard v. Filburn, 317 U.S. 111 (1942); to discrimination against shippers, United States v. Baltimore & Ohio R. Co., 333 U.S. 169 (1948); to the protection of small business from injurious price cutting, Moore v. Mead's Fine Bread Co., 348 U.S. 115 (1954); to resale price maintenance, Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U.S. 386 (1964), Schwegmann v. Calvert Distillers Corp., 341 U.S. 384 (1951); to professional football, Radovich v. National Football League, 352 U.S. 445 (1957); and to racial discrimination by owners and managers of terminal restaurants. Boynton v. Virginia, 364 U.S. 454 (1960).

Damn liberals are ruining everything.

[Paul]

I'm not trying to argue the substantive merits of EITHER position.

I can tell. I don't really know what you're banging on about except for vague assertions about a "liberal" belief in absolute, ah, "omnipotent"--congressional authority, and some even more vague handwaving about how that somehow makes them hypocrites who won't give the President the broad executive powers he wants.

[CharleyCarp]

Mr. J.:

Well, the specific discussion about Rybar is a lot more limited that the 'aghast at the notion of any limits' position you started with. My point was that I doubted they were aghast at any limits, but disagreed as to particular limits. Your response shows my speculation to have been correct.

I don't think the majority opinion in Rybar amounts to a failure to follow Lopez. (And Rybar couldn't get four justices to think so either). Worse, I don't think the needless formalism of requiring the commerce finding in the statute at issue -- where the connection had been made long before in clearly related legislation -- serves the cause of justice, or limitation of powers, well at all. Judge Alito's position would lead to just the kind of acquittal for a legal technicality that conservatives rail about in all but gun-related cases.

[Anarch]

Isn't it interesting that when it comes to Congressional power, the Senate's liberals (is that specific enough?) act horrified that the Court would ever set any limits.

Can you please give examples of this? And to be precise, not just examples of the Senate's liberals being horrified of the limits being construed in that particular case, but of the Senate's liberals being horrified of the very act of the SCOTUS setting any limits whatsoever. I've never seen anything like this before, but it's entirely possible that such cases exist.

[Niels Jackson]

Anarch:

Can you please give examples of this? And to be precise, not just examples of the Senate's liberals being horrified of the limits being construed in that particular case

It requires an act of induction, which is a certain type of reasoning. The fact is, the liberals in the Senate and on the Supreme Court 1) have never identified ANY instance of congressional regulation that is beyond the Constitution's grant of authority (and just to ward off the inevitable tu quoques, neither have a lot of conservative politicians). And conversely, the liberals in the Senate and on the Supreme Court oppose ANY instance in which a judge proposes to allow the Commerce Clause to mean anything more than, "Congress can do what it damn well pleases, because everything ultimately affects interstate commerce in some fashion."

So use your head here. Yes, the Alito opponents were talking about a specific case (Rybar). But it fits right in with a perfectly consistent pattern, as I've described above.

[hilzoy]

Niels: something is definitely screwed up with comments. However: I think that there are limits on the commerce clause, and have said so previously. So there you are.

[Anarch]

It requires an act of induction, which is a certain type of reasoning.

Thanks. As a logician, I'd never have known that.

The fact is, the liberals in the Senate and on the Supreme Court 1) have never identified ANY instance of congressional regulation that is beyond the Constitution's grant of authority (and just to ward off the inevitable tu quoques, neither have a lot of conservative politicians).

That's false on its face as you've phrased it; consider, e.g., driving ages or liquor laws and the like, where pretty much everyone (actually, *everyone*, I think, but I don't know enough about the relevant debates to say with certainty) agreed that the ability to regulate such matters belonged to the states. They did manage to get such regulations enacted via tie-ins to transportation budgets -- but note that they did it through budet tie-tines precisely because most everyone agreed that such legislation didn't lie within the purview of Congress.

And conversely, the liberals in the Senate and on the Supreme Court oppose ANY instance in which a judge proposes to allow the Commerce Clause to mean anything more than, "Congress can do what it damn well pleases, because everything ultimately affects interstate commerce in some fashion."

I'm fairly sure that's also false on its face, but I lack the requisite SCOTUS knowledge -- and not just of the cases, but of the political reaction to those cases -- to say with certainty. CharleyCarp, hilzoy, et al.; is Niels' (IMO) over-sweeping generalization right, or is he missing some (very large number of?) thing(s)?

[CharleyCarp]

I chronically drive faster than the speed limit in Maryland, and have never gotten a speeding ticket there. Therefore, I am immune from the Maryland speed laws. I used to get speeding tickets from time to time when I was younger, and had less gray hair. Speed limits don't apply to people with gray hair.

Mr. Jackson, that's the kind of flawed logic you get when you take a relatively small sample and try to extract principles from it. There have been very few instances when judges have tried to strike down statutes as exceeding the Commerce Clause. Thius is because it's broad, and because Congress is not unaware that it is not infinite. The fact that it's liberals and not conservatives who mostly complain about these few times, further, seems to me to be directly related to the subject matter of Rybar and Lopez, not to any principle of government. That is, had Raich gone the other way, the predominant wailing would have been on the conservative side. Lots of people, on all sides of every issue, are results oriented, rather than principle-driven.

When Roe/Casey is overturned, we'll have plenty of argument to the effect that abortion services -- even if performed by a small town doctor on local women only -- are necessarily part of interstate commerce, and that a total ban is within Congress' power.

[hilzoy]

Anarch: are you a logician? We're in neighboring fields, then, sort of.

[Niels Jackson]

I'm fairly sure that's also false on its face, but I lack the requisite SCOTUS knowledge -- and not just of the cases, but of the political reaction to those cases -- to say with certainty.

If you lack the relevant knowledge, what makes you "fairly sure"?

Anyway, look up Lopez and Morrison. Both 5-4 decisions, with the Supreme Court's liberals in the minority. Look up the reaction that both decisions received from congressional liberals. In fact, if you can find a single liberal who has ever penned a positive word about either decision, I'll be amazed.

Charley: Results-oriented. Yes. That's why Congress loves to expand its own power and to curtail presidential power, by any hook or crook necessary.

[Niels Jackson]

You're wrong about this, though, Charley: That is, had Raich gone the other way, the predominant wailing would have been on the conservative side.

The predominant wailing WAS on the conservative side, with Raich coming out the way it did.

[Niels Jackson]

That's false on its face as you've phrased it; consider, e.g., driving ages or liquor laws and the like, where pretty much everyone (actually, *everyone*, I think, but I don't know enough about the relevant debates to say with certainty) agreed that the ability to regulate such matters belonged to the states. They did manage to get such regulations enacted via tie-ins to transportation budgets -- but note that they did it through budet tie-tines precisely because most everyone agreed that such legislation didn't lie within the purview of Congress.

You're thinking of the minimum drinking age statute. I don't know what occurred in the legislative debates over that bill; but neither are you, right? You've said that you're not familiar even with the most famous Supreme Court cases in this area -- surely you're not up to speed on congressional subcommittee reports from 1984, are you?

Anyway, given that Congress clearly thinks that it has the power to directly regulate the intrastate use of marijuana (see the Raich case), why do you think "everyone" agrees that Congress cannot directly regulate the intrastate use of alcohol?

[hilzoy]

Niels: we have an interesting custom here: we try not to assume that all liberals, or all conservatives, or all Democrats, or all Republicans, think the same way. Partly we do this because, once you think about it, it's absurd to think that they do; partly because it strikes us as a form of intellectual laziness; and partly because it helps to preserve civility.

I first became aware of this when I violated it and was brought to task by Moe. I have since decided that he was completely right.

[Bernard Yomtov]

Anarch: are you a logician? We're in neighboring fields, then, sort of.

This could be a problem. People in neighboring fields seldom agree, because they argue from different premises.