It’s a sign of how little Democrats have on Supreme Court nominee Samuel Alito that on Day Three of his confirmation hearings they were still pounding away on his membership in an obscure Princeton alumni group that flowered briefly at the judge’s alma mater. They can’t touch him on credentials or his mastery of jurisprudence, so they’re trying to get him on guilt by ancient association.
Every American should be concerned by the very disturbing things Judge Alito has written and said.
Most disturbing I think is Alito’s support for the concept of an all-powerful “Unitary Executive” – a President whose powers exceed and overide those of the other two branches of government. The Bush administration is the first to refer to the theory of Unitary exceutive, under which a president accountable to no one, overseen by no one, and restricted by no other force or power restricting the president’s ability to act as he sees fit.
President Bush has used this theory to justify his authorization of methods of torture thet violate the Geneva Convention and order wiretaps without court warrant as explicitly required by FISA, the Foreign Intelligence Survelliance Act. Bush recently referred to the Unitary Executive theory again when in a signing statement to the Torture Prohibition recently passed by Congress, he indicated that he would ignore the law as he deemed necessary.
Where does Judge Alito fit in? According to the LA Times: “A revealing statement came in November 2000 when Alito 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.”
“In Alito Battle, Issues of Presidential Power Thrust to Forefront”
http://www.latimes.com/news/politics/la-na-alito8jan08,1,932560.story?page=2&cset=true&ctrack=1&coll=la-headlines-politics
With the actions of the Bush administration the nation is well on it’s way to upsetting the delicate system of checks and balances between the 3 branches of government put in place by the writers of the Constitution, and creating an elected dictator instead. Judge Alito’s staments indicate that he would be an enabler of, rather than a check on the disturbing trend.
Judge Alito and Dean’s Challenges
Dean, is nothing but consistent. Some weeks ago, after Judge Alito was nominated, he offered an opinion written by Judge Alito as proof that Alito was a heartless monster who did not value civil rights. Well, I went and got the opinion and made it available in full for the Orthodoxy Today audience. I also offered a detailed analysis with quotes. It was clear that the attempt to discredit Alito with that decision was a total SMEAR attack.
You know nothing about the “delicate system” of checks and balances. You are assuming that the President does not have independent power to conduct foreign policy. You are assuming that the Fourth Amendment always requires a warrant for a search. You are assuming the FISA controls the Presidential power.
You are UNINFORMED AND MISINFORMED. None of the above is true. Anyone who takes the Los Angeles Times are a reliable source of information on legal matters is misguided.
Support for Alito from Current Democrat and Former Law Clerk
Source: http://www.powerlineblog.com/ January 12th, 2006
QUOTE FROM LAWYER SUSAN SULLIVAN ABOUT SAMUEL ALITO:
Most efforts at evaluating the nomination of Samuel Alito to the United States Supreme Court have fallen along predictable party lines. By opposing the nomination however, my fellow liberals and I run the real danger of shooting ourselves in our own left foot.
I was one of Judge Alito’s law clerks in 1990-1991, the year the Casey decision was decided. I consider myself a social progressive. I am a card carrying member of the ACLU, a liberal pro-choice advocate who supports abortion rights. I favor gun control support gay marriage and oppose the death penalty. I don’t have a problem if you want to take “God” out of the Pledge of Allegiance. In short, no one is likely to mistake me for a conservative any time soon. Yet, I support the nomination of Judge Alito because I know from having worked closely with him that he is not a political ideologue and is not intent on advancing a conservative political agenda.
As a liberal, what scares me is not the prospect of having Sam Alito on the Supreme Court; what scares me is the way my fellow Liberal Democrats are behaving in response to the nomination. Iâ??m appalled and embarrassed by the fear mongering, the personal attacks and what I see as an irresponsible and misleading distortion of his real judicial record as well as his character. Now the threat of a filibuster lurks and Senator Kennedyâ??s tirade about documents being concealed, seems like little more than a pretext to justify a filibuster.
Dean don’t get your knickers in a twist, the Unitary Executive theory does not equal support for a dictatorship.
It’s just a theoretical discusion on what powers the President has or doesn’t have and how those powers are executed. Not that the executive power superceeds any other branch of government.
I forgot to add, it’s no different than members in Congress who believe that the advise and consent clause means that the President must act in concert with Congress in making decisions.
I draw your attention to “Clinton v.City of New York, 524 U.S. 417 (1998)”, the Supreme Court decision striking down the Line-Item veto. In that decision, Justice Stevens, writing for the majority, stated the following:
“If the Line Item Veto Act were valid, it would authorize the President to create a different lawâ??one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as â??Public Law 105â??33 as modified by the Presidentâ?? may or may not be desirable, but it is surely not a document that may â??become a lawâ?? pursuant to the procedures designed by the Framers of Article I, §7, of the Constitution.
If there is to be a new procedure in which the President will play a different role in determining the final text of what may â??become a law,â?? such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837 (1995).”
Very clearly, the Supreme Court is saying that the President may not change laws without the consent of Congress.
Now consider President Bush’s Signing Statement drafted in response to the Congressional prohibition against torture.
“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.”
President Bush is saying “pass any law you want, I will enforce it as I see fit, or not enforce at all.” Non-enforcement of a law is as good as changing a law, which Clinton v.City of New York clearly prohibited.
We really haven’t seen such arrogance and willful disregard for the other branches of government since Andrew Jackson defiantly ignored the Supreme Court’s ruling on behalf of the Indian Tribes of the southern states, and ordered their forced relocation to Oklahoma via the infamous Trail of Tears. What new Trail of Tears await us if we appoint enablers of unchecked state power to sit on our Supreme Court?
Note 6 Dean, Dean, Dean……SEVERAL MAJOR LEGAL ERRORS
Thou knowest not whereof thou speaketh, for verily, thou hast scrambled different legal issues together and hath produced, not an tasty omelet, but a soggy, yellow mess. From whence doth thou receive this vane foolishness? What knave hath persuaded you to sally forth into the battlefield of ideas without a weapon?
FIRST ERROR: Definition of the issue:
Dean appears to believe that the issue is : “May the President change the laws without the consent of Congress.” I think that Dean is trying to assert that it is unconstitutional for the President to wiretap the conversations of Al Quaeda in Europe who are talking to their agents in the United States. If so, Dean, has confused two different issues. The first issue concerns a the constitutionality of a line-item veto. The second issue concerns the powers of the Executive branch to conduct foreign policy and protect national security.
FIRST CASE: What Clinton vs City of New York is about:
This is a case in which the constitutionality of a act giving the President a line-item-veto was tested. The essential holding is based on the separation of powers doctrine which holds that each of the three branches of government has been granted its own set of powers and no branch may encroach upon the domain of the other two. The line-item veto was held unconstitutional because the Court determined that the Act would grant legislative powers to the President in a way which would disturb the proper separation of powers. Not a very remarkable case. The Fourth Amendment’s guarantee against unreasonable searches and seizures is simply not an issue in this case.
SECOND CASE: This is what Dean thinks he is arguing about. As I noted, each branch of the federal government has been granted certain powers. While one of the President’s duties is to faithfully execute the laws passed by Congress, he is not without powers of his own as the head of the Executive Branch. The constitution grants the President extensive powers over national security matters and the conduct of foreign policy. This means that the Executive Branch as personified by the President derives power from a direct grant by the Constitution AND by grant from Congress. Two sources of power.
FISA is a special Court set up to handle national security issues. The judges on the Court are specially appointed and they agree to the highest level of confidentiality of the proceedings. Cases which involve information sensitive to national security are taken to the FISA court. FISA also has some enabling legislation which grants the Court the authority to review SOME requests for search warrants in national security cases. FISA does not have universal jurisdiction and it doesn’t have jurisdiction over activities ocurring outside the United States.
SECOND, THIRD AND FOURTH ERRORS
Dean, makes at least three mistakes. The Democrats are claiming that the President may never wire tap without an warrant. This is simply untrue and the warrantless search is not confined to national security matters. This is old law, say 175 year old law and the Democrats are counting on the public education system to ensure that Americans don’t know that not all searches require warrants. Second, the Democrats are trying to persuade the country, that the President may only wiretap if FISA approves a warrant. The President has independent powers to tape the phone calls made by foreigners to the United States without a warrant and without a FISA approval. This authority was APPROVED in 1972 and it has been exercise by other Presidents. This is a red herring issue.
Dean, you have exceeded your limit of three legal errors per note. You will be fined 10 pixels for each legal error in excess of three.
Dean it’s not the same issue.
Missourian and Jerry: I trust you both accept the wisdom of Lord Acton’s famous observation, “Power tends to corrupt; absolute power corrupts absolutely.”
I do to, which is why I believe that giving the Executive Branch unchecked, unsupervised and unaccountable power to spy on Americans is fraught with potential for abuse. We simply have too much experience to rely on the Executive Branch to police itself and remain within appropriate constraints.
We remember the Nixon administration, with it’s enemies lists and domestic wiretaps. We recall how Tom DeLay used the Department of Homeland Security to hunt down Democratic opponents of his redistricting plan in Texas. We learned how former national security advisor, and current UN representative John Bolton, used NSA wiretaps to spy on his political enemies in the State Department.
I find your contention that FISA was not ment to be universally applied difficult to accept. Does it seem logical to you that Congress wuld pass the Foreign Intelligence Surveilllance Act to prevent future abuses in wiretap surveillance and leave a huge potential area of abuse, the President’s ability to use wiretaps during time of war open and uncovered by the legislation? If we accept the logic that the president requires the widest amount of flexibility and latitude then why have FISA courts as well. When you look at all the accomodations built into the legislation that make it so different from domestic spying laws, the retroactive period for seeking a warant for example, doesn’t it appear that the intent of the legislation was to cover all potential situations without exception.
I will leave you with these words from the play “Man for All Seasons, by Robert Bolt, which remind us why we have laws:
“Alice: While you talk, he’s gone!
More: And go he should, if he was the Devil himself, until he broke the law!
Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
-Robert Bolt, “A Man for All Seasons”
Dean, There exists established and clear legal precedent in favor of the President,
This issue was addressed in a 1972 Supreme Court case. Note the date, 1972. The precedent is clearly on President Bush’s side. Here is an article with more detail.
Source: Powerline.org http://powerlineblog.com/archives/012592.php
EXCERPT FROM POWERLINE ARTICLE:
Overlooked in most of the commentary on the New York Times article is the simple, undeniable fact that the president has the power to conduct warrantless surveillance of foreign powers conspiring to kill Americans or attack the government. The Fourth Amendment, which prohibits “unreasonable” searches and seizures, has not been interpreted by the Supreme Court to restrict this inherent presidential power. The 1978 Foreign Intelligence Surveillance Act (an introduction from a critic of the Act is here) cannot be read as a limit on a constitutional authority even if the Act purported to do so.
“Further, the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.” That is from the 1972 decision in United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297) which is where the debate over the president’s executive order ought to begin and end. The FISA statute can have no impact on a constitutional authority, any more than an Act of Congress could diminish the First Amendment protection provided newspapers. Statutes cannot add to or detract from constitutional authority.
CLOSE EXCERPT FROM THE POWERLINE ARTICLE
Dean, while your comments are not irrational, they are uninformed. You are not familiar with the structure of the federal government as established by the Constitution and therefore your reasoning is unsound. Here is another attempt to explain.
Article I of the Constitution grants the Executive branch certain powers. The powers granted the Executive are also limited by the Constitution. Article II of the Constitution grants Congress certain powers. The powers granted Congress are also limited by the Constitution. Article III of the Constitution grants the Courts certain powers. The powers granted the Courts are also limited by the Constitution.The Executive branch may, within certain limits, benefit from an additional grant of specific powers from Congress.
FISA is a piece of legislation enacted by Congress. As legislation is subject to constitutional limites. The Constitutional powers of the Executive branch granted by Article I TRUMP legislation, however, those Executive powers are still limimted by the Constitution.
Lastly, it is simply WRONG to assume that the Fourth Amendment requires warrants in all cases. There are many cases in which warrants may be lawfully dispensed with. This has been true for several hundred years. Nothing new here.
What I am trying to express here, it that the Constititional grant of power of Article I TRUMPS any legislation enacted by Congress. However, since the Constitutoin itself contains limits on Executive power, the Executive is not free of all constraints. It is simply true that in some cases, Congress CANNOT LIMIT the power granted the Executive by the Constitution.
Again, please look at the books I ahve recommended on the Constitution. It would be helpful.
Dean
The Liberal’s and Democrat’s current Patriotic concern over rights and the Constitution brings to mind Samuel Johnson’s comment:
“Patriotism is the last refuge of a scoundrel.”
Missourian: As an aside, I have enjoyed debating this issue with you and I am very grateful for your detailed and informative responses. Regardless of how one feels about President Bush or Judge Alito, these are fascinating issues, the same issues that captivated Hamilton, Jefferson and Madison in the Federalist Papers.
How can we have a President strong enough to defend the nation during time of crisis, but not so strong that he(or she) acquires despotic, unaccountable power? Citizens in a democracy need to keep asking this question, if they want to preserve the democratic form of government they are ostensibly fighting to preserve.
We’ve been there before and survived.
Constitutional law provides for different standards during war time. American law does not abandon the entire concept of constitutional constraints during war time , however, when the country is under attack, the Constitution does allow the Executive Branch to vigorously prosecute the war.
Law Professor John Yoo has been demonized by the Left, but his book reviewing the constitutional doctrine of “war powers” points out that FDR was ruthless in taking action to protect America and win the war. Had he not there would have been no country, and no Constitution at all.
I think one of the disconnects between the right and the Left today, is that the right is convinced that there is a real threat, a threat which could destroy our country. One actual possibility is that Iran could deploy a nuclear device on a ship in the international waters of the Pacific. They could boost it in the air and detonate it. The EM wave (electro-magnetic wave) sent off by this explosion would wipe out our electrical grid.
The electrical grid is the vast, interconnected system that we use to send electric power on wires or cable to any part of the country. We can generate power in Vermont and send it to California, however, that isn’t done very often. The beauty of the electrical grid is that if a small section is damaged, the remaining undamaged sections can step in to fill the void. We could pull power from Vermont if the California power plants went down. It would be expensive but we could keep California going. Scientists fear a greater
catastrophe. (Making your day, aren’t I?). Iran could detonate a small atomic bomb near our borders which would generate a EM wave that would FRY every single electrical component in the country. No lights, no phones, no computers, no electrical power, all hospitals frozne in the dark, police unable to communicate. We would be wiped back to the 19th century and the chaos would be Biblical.
Given these kinds of concerns, I become upset when someone objects to a CIA agents in Germany “tapping into” the phone conversation of the Al Quaeda person talking to his buddy in America. We could do that by satellites. The New York Times has informed terrorists that we were able to here ALL of the THEIR conversations on their disposable cell phones. Now every terrorist is throwing away those cell phones.We have lost a significant amount of intelligence which did not require a human being to risk his life to get the information.
It is legitimate to be concerned about unlimited power. We don’t have a case of unlimited power here. However, at SOME POINT IN TIME, we have be able to TRUST the people we ELECT our we will NOT BE ABLE TO DEFEND OURSELVES.
Let us also put “privacy rights” in their proper perspective. Privacy rights are important but THEY ARE NOT ABSOLUTE. A famous Supreme Court Judge whom most people consider to be a liberal, Justice Goldberg, said ” The Constitution is not a suicide pact.” It is not the end of civilization if some people get their phones tapped improperly. We are in genuine danger, it is not a fantasy. If the United States is laid low, there will be nothing to restrain the forces of sheer evil and anarchy and GOD HELP US THEN.
Patriotism and Scoundrels, Facile Witticism
My patriotism takes the form of devotion to a Constitution which protects intellectual and religious freedom, establishes the rule of law and gives each law-biding adult a say in his government.
The fact that a scoundrel may take refuge in patriotic language, does not denigrate genuine patriotism. Just as the fact that a scoundrel may take refuge in religious language, does not denigrate the Faith.
A Man of Character Smeared
If anyone watched the disgraceful hearings, they would have seen a man of character, Judge Alito, displaying the patience and tolerance of 10 saints as he explained basic constitutional ideas to Senators who treated him like a criminal defendant.
Feingold of Wisconsin asked Judge Alito if he had been coached by several of the President’s lawyers. Feingold noted that several of the President’s lawyers had advised the President on national security matters and it might be an ethical issue. Here are a few reasons why this is insulting beyond description.
First, Alito is recognized as one of the foremost legal intellects in America. If his standing were quantified most lawyers would consider him to be among the top 50 legal intellects going today. He has been recognized as such for several decades. If you had watched the hearings you might have noticed that he sat there without notes and answered questions about literally dozens of cases. These cases were not submitted to him in advance so that he could prepare by reviewing them for the hearing. Remember Judge Alito has participated in literally 1,000’s of cases. Yet the Senators could pick nearly any case and Judge Alito was able to speak authoritatively about it. He had the entire case and its legal and factual details in his head. Look Mom, no notes. Given that Feingold’s suggestion that some had to “coach” Judge Alito was grossly insulting.
Second, Feingold suggested that the President was a de facto criminal who had taken illicit legal advice from nefarious lawyers who were now so tainted with wrong-doing that no self-respecting judicial nominee would even talk to them. Please remember that is the Feingold who has been working to subject all political speech to federal regulation through campaign finance “reform” legislation. There are serious moves afoot to regulate the content of internet blogs under this legislation. This is the Senator we are discussing.
The disgraceful conduct of the Democratic Senators at this hearing vastly exceeds the episode where Ms. Alito broke into tears. The Democratic Senators are lucky she didn’t throw her handbag at them, they behaved abysmally.
Distorted Press Coverage
I am perfectly willing to challenge the Bush administration and I agree that any branch of government has got to operate within constraints.
I do wish that people would understand that there exists a “war footing” and a “non-war” footing. We have been able to assume a war footing and return to a non-war footing. We did it during the Civil War and we did it during WWII. Much to the credit of our democracy. Bush has to invest some time getting this message out to the people so that the press does not have a free territory in which to distort the situation.
I think that the NYT has been grossly irresponsible. There does exist legal precedent on the topic of “spying on terrorists.” The NYT gave the impression all wire taps require a warrant and that the President is absolutely bound by FISA. The President does have international and national security powers that come into play. These things are not present when we are debating something like, say, agriculture policy.
If you are worried about legitimate whistle blowers. Whistle blowers should go to the secret Congressional oversite committee not the press. If these people had really been concerned about constitutionality they could have gone to the Security Committees of Congress and blown their whistles in secret.
#14 The facile wittism was a respone to cliche’ quotes to corruption and absolute power (show absurdity with an absurdity). To insinuate what Bush has done is somehow a grasp for absolute power because of corruption is more rhetoric than fact.
It’s an ahistorical assumption compared to other questionable Constitutional violations by previous wartime presidents.
Missourian, quoting Powerline Blog: ” . . . United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297) which is where the debate over the president’s executive order ought to begin and end.”
I don’t understand the reasoning here. The operative phrase is supposed to be “Further, the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”
It seems to me that the author interprets this phrase as affirming the president’s “surveillance power with respect to the activities of foreign powers, within or without this country.” But that wasn’t what the case was about. It was about Nixon’s surveillance of domestic groups suspected of posing a threat, not foreign powers. This is why the case required “no judgment” — because it did not deal with foreign threats.
The Powerline article says that “Overlooked in most of the commentary on the New York Times article is the simple, undeniable fact that the president has the power to conduct warrantless surveillance of foreign powers conspiring to kill Americans or attack the government.”
But that’s the issue under discussion, and it is far from clear that the president’s authority in this regard is unrestricted, especially when the surveillance becomes related to a potential criminal case:
“In United States v. Truong Dinh Hung, the Fourth Circuit held that ‘the executive should be excused from securing a warrant only when the surveillance is conducted “primarily” for foreign intelligence reasons,’ because ‘once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis for a criminal prosecution.’ In a similar vein, the Ninth Circuit held in United States v. Johnson that ‘the investigation of criminal activity cannot be the primary purpose of [FISA] surveillance” and that “[FISA] is not to be used as an end-run around the Fourth Amendment’s prohibition of warrantless searches.'”
Powerline Quote
BIG PICTURE, ALSO KNOWN AS “THE POINT”
I have referred interested readers to reputable sources on the issue of the legality of the NSA “wire-taps.” The essential point is that there exists credible legal authorities that support the President’s position. Certainly there are always arguments which can be made about certain aspects, but, the POINT is that the characterization by the press of the NSA activity is out and out FALSE. It is so far away from the mark, that it amounts to a virtual attack on the President for the sake of simply discrediting him in the eyes of the public, rather than a legitimate discussion of the complex issues.
CASE NOTE IN THE POWERLINE EXCERPT
The quote that was offered was just a highlight of a longer article. For people who wanted to do more reading I provided the citation to the full article. The reasoning of the full article and the articles that are references in it, have multiple foundations. The entire premise does not rest on one case. It just so happens that the small excerpt that I quoted only mentioned one case.
HOLDINGS VS. DICTA:
While it is true that the holding of a case, the precise ruling, is the most important part of any judicial decision, other parts of the decision, may under various circumstances have legal significance.
CONSTITUTIONAL LAW:
Constitutional law is an integrated body of thought. The basic course consumes two semesters, that is just for starters. Everyone takes at least one, and usually two courses in advanced constitutional law. In addition to the substantive constitutional law, there is also civil procedure and jurisprudence. You have to understand justiciability, standing, ripeness, and stare decisis. You have to understand the significance of a formal holding as opposed to dicta.
I am not taking hours of my private life to research law for you, Jim. The essential flaw in this entire discussion is that you are not qualified to read and evaluate legal cases. You BELIEVE that you can interpret Court cases but you can’t and I don’t have the months of time that would be required to teach you how to interpret cases correctly. Please refer to “The Point.”
Missourian writes: “The essential flaw in this entire discussion is that you are not qualified to read and evaluate legal cases.”
Perhaps you confuse me with someone else. This was my first post on the thread, formed in the proposal that perhaps the Powerline Blog folks were reading more into the sentence than what was really there.
Missourian: “You BELIEVE that you can interpret Court cases but you can’t and I don’t have the months of time that would be required to teach you how to interpret cases correctly.”
Well, the sentence to which I referred is written in English, and perhaps it is occasionally possible for an ordinary person to understand at least parts of a legal decision. In the context of the decision, it seems to me that the sentence is not a judicial finding, but merely an observation that the case in question deals only with domestic wiretaps on Americans, not “warrentless surveillance of foreign powers.” In other words, in my view it merely describes the scope of the decision. This is far less than what the Powerline piece appears to claim, that the sentence is the “beginning and end” of the issue. I notice that there is nothing in your response to indicate that that is an incorrect interpretation.
We’ll see what the courts have to say, but I doubt that courts are going to accept the idea that the president has the authority he claims to have on this issue, especially at the point where the surveillance becomes more domestic in nature, or becomes more related to criminal investigation than to intelligence gathering.
If the President has the ability wield extraordinary power during periods of war, and we accept the President’s claim that the war against agents of terror is a war that may last indefinetly, perhaps permanently, does that mean we are also accepting an Executive who is permanantly supreme over the other two branches of government?
Does that mean that the powers of our elected representatives in Congress and judiciary are subordinated and their laws and decisions can be over-ridden by a Supreme Executive, so long as some vague “state of war” exists?
What is the definition of “State of War”? What is the level of conflict that rises to the level of ” state of war” and justifies the President’s exercise of extraordinary power?If there is one terrorist out there who hasn’t been caught are we still at war? Two terrorists? Three?
Should the President’s use of wartime powers require a Congressional declaration? If the Congress authorizes the President to use military force is it also acknowledging that a “state of war” exists?
Does any action involving a use of force by our military, such as the invasion of Grenada, create a state of war and confer wartime powers to the President?
Should the president’s exercise of wartime powers have a time limit?
Should it require a plan to bring the conflict to a conclusion and the realistic possibility that the state of war as defined by the executive may come to an end within a realistic time frame?
If the definition of state of war is “any time, anyone, anywhere may have violent intentions against the United States of America” is it realistic to believe that this will this situaation will ever cease to exist?
Even conservatives fear the dictatorial powers President Bush is claiming. “Dictatorships seldom appear full-fledged but emerge piecemeal.” writes Craig Paul Roberts, former associate editor of the Wall Street Journal, former contributing editor for National Review.
“…The principle that power delegated to Congress by the people cannot be delegated by Congress to the executive branch is the mainstay of our political system. Until President Roosevelt overturned this principle by threatening to pack the Supreme Court, the executive branch had no role in interpreting the law. As Justice John Marshall Harlan wrote: “That congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.
..President Bush has used “signing statements” hundreds of times to vitiate the meaning of statutes passed by Congress. In effect, Bush is vetoing the bills he signs into law by asserting unilateral authority as commander-in-chief to bypass or set aside the laws he signs. For example, Bush has asserted that he has the power to ignore the McCain amendment against torture, to ignore the law that requires a warrant to spy on Americans, to ignore the prohibition against indefinite detention without charges or trial, and to ignore the Geneva Conventions to which the US is signatory.
In effect, Bush is asserting the powers that accrued to Hitler in 1933. His Federalist Society apologists and Department of Justice appointees claim that President Bush has the same power to interpret the Constitution as the Supreme Court. An Alito Court is likely to agree with this false claim.
“Bush Has Crossed the Rubicon”
http://lewrockwell.printthis.clickability.com/pt/cpt?action=cpt&title=Bush+Has+Crossed+the+Rubicon+by+Paul+Craig+Roberts&expire=&urlID=16876661&fb=Y&url=http%3A%2F%2Fwww.lewrockwell.com%2Froberts%2Froberts139.html&partnerID=10
Dean,
In addition to the points other have raised above, the “Unitary Executive” writings of Judge Alito are not related to the separation of powers questions you are raising. Judge Alito repeatedly pointed this out during his testemony. The unitary executive theory holds that the president is the one who holds the authority of the executive branch of government. It does not address which powers are held by the president versus congress. In addition, it is hardly controverisial. Article II Section 1 of the US Constitution states “The executive power shall be vested in a President of the United States of America.” You might believe that the constitution should be ammended to change this section. However, it is hardly out of the mainstream for a judge to say that this section means that the President is the one that has the authority of the executive branch.
Steve – That’s wrong and you are misrepresenting the facts, and I can prove it. The theory of Unitary Executive as it has been exercised by the Bush administration directly relates to the other branches of government.
The New York Times reports: “Mr. Bush, however, seems to see no limit to his imperial presidency. First, he issued a constitutionally ludicrous “signing statement” on the McCain bill. The message: Whatever Congress intended the law to say, he intended to ignore it on the pretext the commander in chief is above the law. That twisted reasoning is what led to the legalized torture policies, not to mention the domestic spying program.
Then Mr. Bush went after the judiciary, scrapping the Levin-Graham bargain. The solicitor general informed the Supreme Court last week that it no longer had jurisdiction over detainee cases. It said the court should drop an existing case in which a Yemeni national is challenging the military tribunals invented by Mr. Bush’s morally challenged lawyers after 9/11. The administration is seeking to eliminate all other lawsuits filed by some of the approximately 500 men at Gitmo, the vast majority of whom have not been shown to pose any threat.
Both of the offensive theories at work here – that a president’s intent in signing a bill trumps the intent of Congress in writing it, and that a president can claim power without restriction or supervision by the courts or Congress – are pet theories of Judge Samuel Alito, the man Mr. Bush chose to tilt the Supreme Court to the right.
“The Imperial Presidency at Work”
http://www.nytimes.com/2006/01/15/opinion/15sun2.html?incamp=article_popular_5