Friday, January 13, 2006

ALITO: unitary executive

KENNEDY: Judge Alito, in the same signing statement undermining the McCain anti-torture law, the president referred to his authority to supervise the unitary executive branch.

That is an unfamiliar term to most Americans, but the Wall Street Journal describes it as the foundation of the Bush administration's assertion of power to determine the fate of enemy prisoners, jailing U.S. citizens as enemy combatants without charging them.

President Bush has referred to this doctrine at least 110 times, while Ronald Reagan and the first President Bush combined used the term only seven times. President Clinton never used it.

Judge Alito, The Wall Street Journal reports that officials of the Bush administration are concerned that current judges are not buying into its unitary executive theory. So they're appointing new judges more sympathetic to their executive power claims. We need to know whether you're one of those judges.

In the year 2000, in a speech soon after the election, you referred to the unitary executive theory as the gospel and affirmed your belief in it.

So, Judge Alito, the president is saying he can ignore the ban on torture passed by Congress, that the courts cannot review his conduct.

In light of your lengthy record on the issues of executive power, deferring to the conduct of law enforcement officials even when they are engaged in conduct that your judicial colleagues condemn -- Judge Chertoff, Judge Rendell -- subscribing to the theory of unitary executive which gives the president complete power over the independent agencies, the independent agencies that protect our health and safety, believing that the true independent special prosecutors investigate wrongdoing are unconstitutional, referring to the supremacy of the elected branches over the judicial branch, and arguing that the court should give equal weight to a president's view about the meaning of the laws that Congress has passed, why should we believe that you'll act as an independent check on the president when he claims the power to ignore the laws passed by Congress?

ALITO: Well, Senator, let me explain what I understand the idea of the unitary executive to be. And I think there has been some misunderstanding, at least as to what I understand this concept to mean.

I think it is important to draw a distinction between two very different ideas. One is the scope of executive power. Often presidents -- or occasionally presidents -- have asserted inherent executive powers not set out in the Constitution. We might think of that as, you know, how big is this table, the extent of executive power.

The second question is: When you have the power that is within the prerogative of the executive, who controls the executive?

Those are separate questions. The issue of, to my mind, the concept of the unitary executive, does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president.

ALITO: Now, the power that I was addressing in that speech was the power to take care that the laws are faithfully executed, not some inherent power but a power that is explicitly set out in the Constitution.

KENNEDY: Would that have any affect or impact on independent agencies?

ALITO: The status of independent agencies I think is now settled in the case law.

This was addressed in Humphrey's Executor way back in 1935 when the Supreme Court said that the structure of the Federal Trade Commission didn't violate the separation of powers and that it was revisited and reaffirmed in Wiener v. the United States in 1958.

KENNEDY: So your understanding of any unitary presidency, that they do not therefore have any kind of additional kind of control over the independent agencies than has been agreed to by the Congress and signed into law at the prior time?

ALITO: I think that Humphrey's Executor is a well-settled precedent.

What the unitary executive I think means now, we would look to Morrison I think for the best expression of it. And it is that things cannot be arranged in such a way that interfere with the president's exercise of his power on a functional -- taking a functional approach.

KENNEDY: I want to just mention this signing of the executive understanding of the legislation that we passed banning torture, what the president signed on to.

"The executive branch shall construe the Title X and Division A relating to detainees in a matter with the constitutional authority of the president to supervise the unitary executive branch as the commander in chief and consistent with the constitutional limitations on judicial power."

KENNEDY: Therefore, it's the warning that the courts are not going to be able to override the judgments and decisions. That's certainly my understanding of those words, which will assist in achieving the shared objective of the Congress and the president.

That statement there, in terms of what was agreed to by Congress, 19-0, by John McCain, by President Bush, and then we have this signing document which effectively just undermines all of that -- it is something that we have to ask ourselves, whether this is the way that we understand the way that laws are to be made.

It was very clear in the Constitution who makes the laws. The executive -- Congress and the Senate makes it. The president signs it. And that's the law. That's the law.

These signing statements, and recognizing the signing statements and giving these value in order to basically undermine that whole process is a matter of enormous concern.

Thank you.


KYL: Thank you, Mr. Chairman.

Mr. Chairman, let me begin by just asking the witness if you'd like to comment again on the unitary executive. I have this specifically in mind because, while I think I understood your explanation of it, Senator Biden just referred to it. And I thought maybe it would be useful to draw the distinction that I heard you draw with respect to your discussion of the unitary executive power, if you could do that please.

ALITO: Yes, certainly, Senator.

As I understand the concept, it is the concept that the president is the head of the executive branch. The Constitution says that the president is given the executive power.

And the idea of the unitary executive is that the president should be able to control the executive branch, however big it is or however small it is, whether it's as small as it was when George Washington was president or whether it's big as it is today or even bigger.

It has to do with control of whatever the executive is doing. It doesn't have to do with the scope of executive power. It does not have to do with whether the executive power that the president is given includes a lot of unnamed powers or what's often called inherent powers.

So it's the difference between scope and control. And as I understand the idea of the unitary executive, it goes just to the question of control; it doesn't go to the question of scope.


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