Two inquiries into presidential power
on Jan 8, 2006 at 9:35 pm
The Republican-controlled Congress has had little appetite for a searching inquiry into the wide-ranging claims of presidential authority that have regularly come out of President Bush’s White House, including the office of Vice President Cheney. But there will be two forums — one starting Monday, and another in February — to test whether that relative indifference remains.
Some scholars are suggesting that the Bush Administration has made more sweeping claims for presidential authority than has any White House in the past. (See, for example, professor Noah Feldman’s lengthy article in the current New York Times Sunday Magazine.)
Such assertions of authority have been tested recently — if at all — only in the courts. There was the legal challenge to the authority of Vice President Cheney’s energy task force (which failed in the Supreme Court), and there has been a flurry of challenges to the presidential war powers claims. But Congress has chosen to stay largely on the sidelines.
Senate Judiciary Committee hearings that open formally tomorrow, with questioning by senators to begin on Tuesday, will provide a potentially significant examination of presidential prerogative. That will come as the senators question Supreme Court nominee Samuel A. Alito, Jr., about how he views the powers of the presidency. It is something of an anomaly, of course, for a hearing into a judicial nomination to become a forum for this kind of examination.
But Alito is on record, at least when he was a high-level government attorney, as being a strong devotee of presidential authority. Behind that view, of course, lies a constitutional perception about the primacy of the presidency. With the Supreme Court now becoming deeply immersed in reviews of presidential powers, especially wartime authority, Alito’s current understanding of the Constitution’s separation-of-powers is directly relevant to future service on the Court.
About a month from now, the Senate Judiciary Committee is expected to provide a second forum on presidential authority — hearings into the legal basis for the National Security Agency’s electronic surveillance on calls and computer messages of Americans. The scope of those hearings is not yet well defined, but they definitely will occur, according to the committee’s chairman, Pennsylvania Republican Arlen Specter.
First, though, will come the Alito hearings. Chairman Specter said on Sunday on the TV show, “Face the Nation,” that Alito will be closely questioned on this broad issue. “I beieve that presidential power will be very, very important” during this week’s hearings, he said. “You have what appears to be a conflict between the president;s claim of executive war powers to eavesdrop without a warrant, a conflict with what Congress has done on the Foreign Intelligence Surveillance Act. And I think it is a fair inquiry, and I intend to press the question with Judge Alito as to how he would approch these issues on a jurisprudential base.” The inquiry, of course, is likely to go beyond the domestic eavesdropping question, to other claims of presidential power and Alito’s responses to those.
One certain source of inquiry will be a memo that Alito wrote on Feb. 5, 1986, when he was a deputy assistant attorney general in the Reagan Administration. He strongly advocated the use of statements by the President, when signing legislation into law, to provide interpretations of the law’s meaning that would be on an equal footing with Congress’ understanding of what it had done. “The President’s understanding of the bill should be just as imporgant as that of Congress,” he wrote.
In the past, he said, presidents seldom had explained “in any depth or detail” how they interpreted the bills they have signed. But, suggesting a bolder use of presidential signing statements, Alito said that “would increase the power of the Executive to shape the law.” And, he added, “by forcing some rethinking by courts, scholars, and litigants, it may help to cure some of the prevalent abuses of legislative history.”
As it turns out, at least some senators on the Judiciary Committee will have a case study to use as the predicate for questions to Judge Alito on this constitutional view of White House prerogative. In signing into law on Dec. 30 a defense bill that supposedly put limits on the Executive Branch’s use of torture in dealing with detainees in the war on terrorism, President Bush suggested flatly that the law would not inhibit his powers as Commander in Chief in wartime. In the same legislation, Congress cut back on detainees’ access to U.S. courts. And, in his statement, Bush said flatly that this part of the legislation would wipe out all pending cases brought by detainees.
The latter issue — the effect of the new legislation on existing detainee lawsuits — is now directly involved in the Supreme Court’s review of the military tribunals case, Hamdan v. Rumsfeld (05-184).
And, on the domestic spying issue, Alito is sure to get some questions about another memo he wrote as a government attorney suggesting that the U.S. attorney general should be immune to legal challenges for illegal wiretapping. That, too, would seem to bear directly on Executive prerogative.
It is not yet clear that the domestic surveillance program set up by the Bush Administration after the Sept. 11, 2001, terrorist attacks will come before the Supreme Court at some point. But some defense lawyers for individuals convicted of or facing terrorism-related charges have vowed to test whether such warranteless surveillance was done on their clients, thus perhaps setting the stage for a major court review of the issue.
For now, though, the Judiciary Committee seems very interested in that issue. In his TV appearance Sunday, Sen. Specter said “I intend to push those hearings for early February….They will be open hearings. We will not be going into the secrets as to what has been undertaken, but the legal basis, whether the [9/11] resolution authorizing the use of force included the authority to eavesdrop without a warrant. What are the relative powers of the president and Congress?”
A key witness at those hearings, he said, would be Attorney General Alberto Gonzales — one of the architects of the Bush Administration’s constitutional arguments for wide-ranging presidential power.
