Friday, January 13, 2006

ALITO: executive interpretation and presidential signing statements

SPECTER: Before pursuing that further -- and we'll have a second round -- I want to broach one other issue with you; my time is almost up.

And that is, in the memorandum you wrote back on February 5th, 1986, about the president's power to put a signing statement on to influence interpretation of the legislation, you wrote this: "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."

SPECTER: Is that really true when you say the president's views are as important as Congress?

The president can express his views by a veto, and then gives Congress the option of overriding a veto, which Congress does not have if the president makes a signing declaration and seeks to avoid the terms of the statute.

And we have the authority from the Supreme Court that the president cannot impound funds, can't pick and choose on an appropriation. We have a line-item veto case, where the president cannot strike a provision even when authorized by Congress.

Well, I have got 10 seconds left. I guess when my red light goes on, it doesn't affect you. You can respond.

Care to comment?


ALITO: I do, Senator.

I think the most important part of the memo that you're referring to is a fairly big section that discusses theoretical problems. And it consists of a list of questions. And many of the questions are the questions that you just raised.

And in that memo, I said, "This is an unexplored area, and here are the theoretical questions that" -- and, of course, they are of more than theoretical importance -- "that arise in this area."

That memo is labeled a rough first effort at stating the position of the administration. I was writing there on behalf of a working group that was looking into the question of implementing a decision that had already been made by the attorney general to issue signing statements for the purpose of weighing in on the meaning of statutes.

And in this memo, as I said, it was a rough first effort, and the biggest part of it, to my mind, was the statement: "There are difficult theoretical interpretive questions here, and here they are." And had I followed up on it -- and I don't believe I had the opportunity to pursue this issue further during my time in the Justice Department -- it would have been necessary to explore all those questions.

SPECTER: My red light went on.


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