Fact Check: Judge Alito and Presidential Power

Judiciary Committee, Minority Staff
Contact: Tracy Schmaler, 224-7703
See this document at: http://democrats.senate.gov/judiciarycommitteesupremecourt

Fact Check: Judge Alito and Presidential Power

Today, in response to a question from Senator Leahy about remarks he delivered to the Federalist Society regarding the scope of presidential power, Judge Samuel Alito testified that "What I said in that speech was that the Constitution confers the executive power on the president. And when we are dealing with something that is within the president's executive power . . . the president should have the authority to control the executive branch."

This is nothing more than another evasion. Rather than dancing around the question and delivering platitudes such as "the president should have the authority to control the executive branch," Judge Alito should discuss his view of the scope of presidential power. This is especially important because Judge Alito's record betrays an alarming deference to the Executive branch at a time when Americans have learned of new and disturbing government intrusions on their lives.

Examples of Judge Alito's Expansive View of Executive Power:

As a Sitting Judge, Judge Alito Espoused the "Theory of the Unitary Executive," a Theory of Extreme Deference to the Executive Branch

In remarks he gave while a sitting judge in 2000 to the Federalist Society, Judge Alito stated his belief that "the theory of the unitary executive . . . best captures the meaning of the Constitution's text and structure." (Engage: The Journal of the Federalist Society's Practice Groups, page 12, November, 2001) Judge Alito described this theory as holding that "all federal executive power is vested by the Constitution in the President."

The "unitary executive" theory calls for a restriction of legislative and judicial power vis-a-vis the Executive branch and has been cited to limit, or even eliminate, congressional authority over federal regulatory agencies. Recently, this theory has also been used to defend the Bush Administration's domestic spying program, the detention of U.S. citizens as enemy combatants, and a White House legal memo defending torture.

Judge Alito cited the unitary executive theory in criticizing the Supreme Court's decision in Morrison v. Olson, which upheld Congressional authority to restrict the Attorney General's power to fire an independent counsel investigating alleged executive branch misconduct. 487 US 654 (1988). Judge Alito stated that "under the theory of the unitary executive, the constitutionality of this Act [the independent counsel statute] was questionable." (Engage, at 13) This casts Constitutional doubt on all independent enforcement agencies run by officials not removable by the President such as: the Securities and Exchange Commission, the Federal Communications Commission; the Federal Trade Commission, the National Labor Relations Board, and many other agencies which the Congress determined should be independent and have enforcement authority.

In an earlier speech to the Federalist Society, Judge Alito called the Morrison decision "stunning," said that the ruling "restricted the executive's constitutionally guaranteed appointment power," and described congressional checks on broad presidential power as "pilfering." 26 Am. Crim. L. Rev. 1667 (1989).

Furthermore, Justice Thomas referenced the "unitary Executive" in dissenting from the Supreme Court's decision to limit the President's power to detain U.S. citizens as enemy combatants. Hamdi v. Rumsfeld 542 U.S. 507, 581 (2004).

Judge Alito Supported Absolute Immunity for Government Officials Authorizing Illegal Wiretaps and Upheld a Warrantless FBI Video Surveillance

In 1984, while working in the Solicitor General's office, Judge Alito signed a brief in Mitchell v. Forsyth, 472 U.S. 511 (1985), arguing that the Attorney General should have absolute immunity for civil damages stemming from the authorization of wiretaps without a warrant - which would make the Attorney General immune even in the case of willful wrongdoing.

While Judge Alito argued against including the absolute immunity defense in the brief for tactical reasons, a memo he wrote makes clear that he personally embraced the argument that the Attorney General should have absolute immunity: "I do not question that the Attorney General should have this immunity, but for tactical reasons I would not raise the issue here." (Memorandum from Samuel A. Alito to the Solicitor General re: Forsyth v. Kleindiendst, June 12, 1984) Judge Alito thus proposed that the ultimate goal be kept secret to advance his covert strategy to provide absolute immunity in this area. This raises concerns about whether his current positions conceal private outcomes which he would impose at a later date

The Supreme Court ruled against the government on its argument for absolute immunity, stating. "The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity Judge Alito later wrote the majority opinion in United States v. Lee, where the Third Circuit upheld the FBI's warrantless video surveillance of the defendant's hotel room as permissible under the 4th Amendment. 359 F.3d 194 (3d Cir. 2004) Judge McKee issued a strong dissent from Judge Alito's decision, explaining that the FBI "had the ability to manipulate a video camera to see and hear practically everything [the defendant] did in the privacy of his hotel suite throughout the day and night. The limitations of that Orwellian capability were not subject to any court order. Rather, they were defined by the curiosity and scruples of a single agent. That is simply not adequate given the importance of Fourth Amendment guarantees." Id. at 214.

Judge Alito Supported the Use of Presidential Signing Statements to Dictate the Interpretation of Laws and Steer Courts to Disregard Congressional Intent

While serving as Deputy Assistant Attorney General, Judge Alito recommended the increased use of interpretive Presidential signing statements - statements issued by the President when signing a bill, providing his view of how the law should be interpreted. (Memorandum from Samuel A. Alito to The Litigation Strategy Working Group re: Using Presidential Signing Statement, February, 5, 1986). The purpose of such statements is to encourage the courts to pay as much attention to the President's interpretation of a law as they do to the legislative intent and to give the President the "last word on questions of interpretation." Id. Judge Alito explained that such statements would "increase the power of the Executive to shape the law." Id.

The Reagan Administration popularized the use of signing statements to interpret the law, and the current Bush Administration has used them even more aggressively - issuing such statements at least 108 times.

Most notably, President Bush issued an alarming interpretive statement with the December 30, 2005 signing of the Defense Appropriations Bill, which included the McCain Amendment prohibiting cruel, inhuman, and degrading treatment of detainees by U.S. personnel under all circumstances. The President attempted to impose limits on this provision, which he and Vice President Cheney had fought against, by writing in his signing statement that the executive branch "shall construe" the McCain Amendment "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, which will assist in achieving the shared objective of the Congress and the President ... of protecting the American people from further terrorist attacks." According to Press reports, observers inside and outside of the White House interpret this statement to mean that the President is asserting that he has the right to bypass the McCain Amendment when he sees fit. (Boston Globe, "Bush Could Bypass New Torture Ban," January 4, 2006).

While courts have yet to give interpretive presidential signing statements much weight (Washington Post, "Alito Once Made Case For Presidential Power", January 2, 2006), that might change if Judge Alito is confirmed.

Real-Life Consequences:

This is more than an arcane legal issue. Americans today are faced with the very real and disturbing example of government intrusion in their lives. The nonpartisan Congressional Research Service of the U.S. Congress issued a report raising very serious concerns about the legality of the warrantless eavesdropping authorized by President Bush. (Washington Post, 1/7/06.)

Furthermore, for many years the NSA (and its predecessor the Armed Forces Security Agency) was given covert access to daily microfilm copies of all telegram messages coming into the U.S. or going out of the U.S. via Western Union, RCA and ITT. At times as many as 150,000 telegram messages a month were secretly analyzed by NSA agents without U.S. citizens knowing that their private messages also went to the NSA. The happened without any court approval until the practice was exposed by Congressional hearings in 1975.

Given the Bush Administration's authorization of an illegal spying program that allows officials to monitor the conversations and communications of American citizens without obtaining warrants and its attempts to fight Congressional limitations on torture, the topic of executive power has rarely been so important.

Furthermore, Judge Alito, if confirmed, would replace Justice O'Connor - who understood that executive power must have reasonable limits. As she noted in Hamdi v. Rumsfeld: "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." Hamdi, at 536.