1/27/06
Talking about Judge Alito and his views on the 'unitary executive.'
Sen. Kerry: Now, if his judicial opinions and legal memoranda do not convince you of these things, you can take a look at the speech he gave to the Federalist Society in which, as a sitting judge, he ``preached the gospel'' of the Reagan Justice Department nearly 15 years after he left it; a speech in which he announced his support of the ``unitary executive theory'' on the grounds that it ``best captures the meaning of the Constitution's text and structure.''
As Beth Nolan, former White House counsel to President Clinton, describes it:
``Unitary executive'' is a small phrase with almost limitless import: At the very least, it embodies the concept of Presidential control over all Executive functions, including those that have traditionally been exercised by ``independent'' agencies and other actors not subject to the President's direct control. Under this meaning, Congress may not, by statute, insulate the Federal Reserve or the Federal Election Commission ..... from Presidential control.
Judge Alito believes you can.
The phrase is also used to embrace expansive interpretations of the President's substantive powers, and strong limits on the Legislative and Judicial branches. This is the apparent meaning of the phrase in many of this Administration's signing statements.
Now, most recently, one of those signing statements was used to preserve the President's right to just outright ignore the ban on torture that was passed overwhelmingly by the Congress. We had a long fight on this floor. I believe the vote was somewhere in the 90s, if I recall correctly. Ninety-something said this is the intent of Congress: to ban torture. But the President immediately turned around and did a signing in which he suggested an alternative interpretation. And Judge Alito has indicated his support for that Executive power.
During the hearings, Judge Alito attempted to convince the committee that the unitary executive theory is not about the scope of Presidential power. But that is just flat wrong. Not only does the theory read Executive power very broadly, but, by necessity, it reads congressional power very narrowly. In other words, as the President gains exclusive power over a matter, the Constitution withholds Congress's authority to regulate in that field. That is not, by any originalist interpretation, what the Founding Fathers intended.
Let me give you a real-life example, as described again by Beth Nolan:
hen the Reagan Administration undertook the covert arms-for-hostages operation that eventually grew into the Iran-Contra scandal, it triggered the requirement of the National Security Act that the Administration provide Congress ``timely notification'' of the covert operation.
Reading the phrase ``timely notification'' against the background of the unitary executive theory, the Justice Department stated, ``The President's authority to act in the field of international relations is plenary, exclusive, and subject to no legal limitations save those derived from the applicable provisions of the Constitution itself.''
According to Justice, under that interpretation, Congress's role in this matter was limited because its only constitutional powers in the area of foreign affairs were those that directly involved the exercise of legal authority over American citizens. Justice even qualified this statement, saying that by ``American citizens'' it meant ``the private citizenry'' and not the President or other executive officials.
Ahm, seriously, I think attempting to hold up a Supreme Court nomination because you fear that this one person might impose a judicial philosophy that seriously unbalances the concept of 'separate but equal' branches of government is an indication of not agreeing. Unitary Executive theory and all it's weird and dangerous implications: ahm, he's against it.
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