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

[rilkefan]

kenB, thanks for the link, though it did make my eyes glaze over despite its clarity - will try again when it's not after dinner.

[dutchmarbel]

I don't think it is inherently irrational to treat a human who is growing into his brain under a slightly different moral understanding for ending his life than a person who is dying and exhibits brain death.

aaarrgghh.... I seem to agree with Sebastian more than with Hilzoy, how do I handle this new universe I live in :) ?

I think that "killing humans is wrong" is a moral value that is shared quite universally. For me it is more a 'human' value that religions picked up on than one that comes from religion. But there are both rational argumenst that have an impact (when is something alive) and other moral values (are you entitled to decide about your own body).

As I said in the abortion thread: I think that with abortion most people can find common ground about what is acceptable for them, even if it is not ideal, because they recognize the other persons moral values. The discussion is usually about when the child is "alive enough' to be an entity with own rights and when those rights take precedent over the right of the mother to decide about her own life and body.

Euthanasia is another item where several moral values clash and one has to decide which ones take precedent. Some of those are religiously inspired (people who believe that god gave them life and thus that they cannot decide about it themselves). You can discuss the limits and interpretation of that value (what's a gift, who owns what, etc.). But it clashes with the value others have when they feel that they can decide about their lifes because they can decide about their body. Except for people who feel that the ownership lies with the living human no matter from which source life originates. How do you decide about how normative (obligatory?) those values can be?

In the Netherlands we feel that the right of self-determination is very important. We also (in general of course, not everybody holds the exact same belief) beliefe that society has to protect it's members - even against themselves. So euthanasia is accepted, but we have to be reasonably sure that you really want it (if you have an agreement with your doctor but you cannot clearly communicate your desires AT THE MOMENT of euthanisation, it cannot happen) and we have to agree that living on is worse than dying for the deciding person.

In the Netherlands about 80% of the population is happy with our euthanatia rules, in the USA there is much less support though our societies share the two basic values about self-determination and society protecting it's own members. Is the religious component stronger? Are you more normative? Is my observation that the US has a more distrustfull society correct and has that an impact? Is the weight of the self-determination value stronger in our society than in yours?