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Tuesday, January 10, 2006

Against omnipotent rulers.

It's time for a crash course in the deeply antidemocratic legal theories of President Bush's favorite lawyers, including Samuel Alito: the "unitary executive" doctrine, especially as applied to torture and the circumvention of Congressional laws about surveillance. In today's Boston Globe Charlie Savage gives some background on the tyrannical doctrine Alito promoted in the Reagan administration and which Alberto Gonzales, John Yoo, and Harriet Miers seem to have embraced in formulating Bush's pro-torture, pro-domestic spying, and pro-permanent detention policies:

Adherents of the theory say that the Constitution prevents Congress from passing a law restricting the president's power over executive branch operations. And, they say, any president who refuses to obey such a statute is not really breaking the law.

As a lawyer during the Reagan administration, Alito worked for a Justice Department office that helped developed the modern form of the theory. Alito and colleagues were seeking ways to increase the power of the president.

In a speech in November 2000 before the conservative Federalist Society, Alito said he believes that the Constitution gives the president "not just some executive power, but the executive power — the whole thing."

"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, referring to his days in the Reagan administration. "And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure."

Alito did not specify how he would apply the theory. But other adherents have invoked it to argue for giving the president increased powers, including authority to withhold information from Congress; to take secret actions without telling Congress; and to take control of independent agencies.

When President Bush took office, many adherents of the "unitary executive theory" joined his administration.

During Bush's first term, according to a study by a Portland State University professor in Oregon, Phillip J. Cooper, Bush objected to 82 provisions of new laws on grounds that they violated his power, in Bush's words, to "supervise the unitary executive."

The mechanism that Bush used to make those 82 complaints were presidential signing statements, official documents in which a president lays out an interpretation of a new law.

As a Reagan administration lawyer, Alito helped expand the use of signing statements to ensure, in his words, that "the president will get in the last word on questions of interpretation."

Bush's interpretations of torture and surveillance laws have come under dispute in several recent cases.

Two weeks ago, he issued a signing statement invoking his executive powers to reserve the right to waive a law governing torture.

Because the Supreme Court may be called upon to resolve disputes over the president's wartime powers, Schumer said yesterday, Alito must explain whether his embrace of the "unitary executive theory," means that he might feel inclined to resolve such disputes in the president's favor.

"We need to know, when a president goes too far, will you be a check on his power or will you issue him a blank check to exercise whatever power alone he thinks appropriate?" the New York senator added.

So, yeah, I worry about Judge Alito. Unlike some liberals — and in defiance of the media's one-issue lens on all matters juridical — I don't think about the Supreme Court primarily in terms of abortion. Something much more important is at stake right now: the question of whether there are democratic or legal limits to an American president's power during wartime.

I hope many senators recognize the dangers of this doctrine and vote against Alito's confirmation.

("Schumer questions nominee's theory on executive role," Charlie Savage, Boston Globe 1.10.06, reg req'd)

Copyright © 2006 by Philocrites | Posted 10 January 2006 at 9:50 PM

Previous: Theology II: What do you want to read?
Next: On Unitarian Universalist opposition to Alito.




Bill Baar:

January 10, 2006 10:55 PM | Permalink for this comment

Spend some time with Stuart Buck.

Bill Baar:

January 11, 2006 07:35 AM | Permalink for this comment

U of Chicago's Prof Sunstein (no friend of Alito) had a good analysis of the Presidential powers questions too on the Law School's blog.

The Bush Administration has made strong claims about the "inherent" power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold.

And then goes on doing an analysis which sounds a lot like what Alito said yesterday.


January 11, 2006 08:36 AM | Permalink for this comment

I'm not saying that smart people can't agree with Alito; I'm saying that the way Bush's legal advisors have interpreted the "unitary executive" greatly exceeds my view of appropriate presidential behavior. A president should be bound to the "will of the people" as expressed not just in the presidential election, but also in the Congress -- which is (in theory at least) more accountable to the people.


January 11, 2006 09:16 AM | Permalink for this comment

So does this make Alito a Unitarian?

h sofia:

January 11, 2006 12:04 PM | Permalink for this comment

At what point do people see the writing on the wall? I am not terribly optimistic.

Doug Muder:

January 11, 2006 09:36 PM | Permalink for this comment

Back in the Sixties conservatives used to talk about "creeping socialism". They meant that even though liberals weren't proposing to socialize the whole economy, the liberal solution to every problem seemed to increase the government's economic influence.

Well, now we have creeping fascism. I don't expect to see a coup tomorrow, but every day the government gets a little more secret, a little more military, and a little less accountable to the people.

Someday the "unitary executive" may decide to ignore the law that says he has to hold another election.


January 11, 2006 10:15 PM | Permalink for this comment

Jason isn't the only one cracking this bad joke about Alito's deference to imperial presidents. Here's's version:

Alito is Roman Catholic, but don't be surprised if he is accused of being a Unitarian this week -- not of the Protestant sect, but an advocate of the theory of the "unitary executive."

I don't know; the doctrine seems a bit monarchical -- even papal -- to me.


January 12, 2006 12:06 AM | Permalink for this comment

I am more hip than I thought.

Bill Baar:

January 12, 2006 11:53 PM | Permalink for this comment

No FDR Liberals anymore. I took FDRs side on the court packing case in Constitutional History. I still would.

Check Chicago's Chapman (a liberal) on Alito.

It's a good column.

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