Balkinization: The Alito Nomination: The Plot Thickens

The Alito Nomination: The Plot Thickens

Sandy Levinson

Several days ago, I posted a comment suggesting that the Alito nomination was part of a plot designed to reinforce Executive power and that the issue in particular of abortion was designed to serve as a distraction. An article in today's Washington Post that focuses on Adlito's views of executive power offers some support for this view of connecting the dots and explaining, for example, why the relatively obscure Judge Alito was selected instead of the substantially more distinguished Judge McConnell:
http://www.washingtonpost.com/wp-dyn/content/article/2006/01/01/AR2006010100788.html.

The most important paragraph is the following:

"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," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

Important to whom, one might ask? The first answer is "internal": I.e., one might well view this as supporting the view that Department of Justice lawyers, including lawyers in the Office of Legal Counsel, which is at least as important as any given Federal Court of Appeals, should look to presidential undersanding when interpreting statutes. Only, presumably, in the absence of a signing statement, should any attention be paid to legislative history. Of course, if one is a strong Scalian, then it is not clear why a presidential signing statement should have any more authority than a committee report. Neither, according to Scalia, should be paid the slightest attention. This may suggest that Alito is less of a Scalia clone than has been suggested and that he is in fact more dangerous, at least if one fears Executive supremacy.

The second answer is more "external": I.e., what should courts do when faced with conflicting legislative and executive understandings, assuming that one doesn't ignore both a la Scalia. The answer, presumably, is to give priority to the President. If that's not what Alito means, it's hard to figure out exactly what he does mean to say. If one combines this rule with a version of James Bradley Thayer's "clear mistake rule" for exercising judicial review over presidential actions, then this is clearly a go-ahead for a basically unfettered President. It is extremely difficult to label any given legal opinion as truly "frivolous" and therefore a "clear mistake" when prestigious and institutinally well-located lawyers assert it. Such lawyers, of course, are part of the reference group for defining what we mean by a "professional consensus" necessary to establish something as "beyond the pale." It is one thing to accuse a fly-by-night lawyer of making unprofessional arguments. It is quite another to say this of otherwise well-respected and well-located lawyers. Can one really say, for example, that Cass Sunstein has revealed himself to be an incompent lawyer, as opposed to saying simply that one "respectfully disagrees" with his reading of the AUMF or Article II.

The ultimate question, of course, is what happens when the Court tells the President that there is indeed something that he/she cannot do, however much the President believes, in entirely good faith, that it is "necessary" (in some sense of that slippery word) to safeguard some important public value, including national survival. I don't know that Judge Alito has ever spoken to this question directly. It should be enough, though, that there is now fairly dispositive evidence that he was, while in the Reagan Administration, a full-scale adherent of what might be termed the "liberated" (and possibly "unfettered") Executive, and it would be astonishing if the Justice-pickers in the Bush Administration did not believe that this represents his view today.

So, as before, we now need to see what Senator Specter (whose name I consistently misspelled in my earlier posting) will do. If he exhibits some backbone, the nomination is in big trouble. If not, then it will be up to the Democrats. Generally, that sentence does not lead one to feel better about future events.

sandy levinson

Posted 5:46 PM by Sandy Levinson [link]

Comments:

Alito seems to ignore the different functions of Congress and the President in making law. Their needs to be "approval" from both, but only one side gets to make the proposal. Unlike drafting a law, the decision to sign or veto is take-it-or-leave-it. Even the line-item veto (with Congressional approval) was held to violate separation of powers. Timing of the statement is also important. Congressional history reflects interpretation prior to passage and enactment. The President's statement occurs after the final opportunity of the Congress to make an amendment. Only an advocate for the excutive could reason the President's understanding is "just as important."

That said, I think there is some middle ground between ignoring the Presidential statement and having it override Congressional history. The Presidential statement can add context where there is no congressional history, or could help explain amendments made at the request of the President, or amendments not made at the request of the President. A signing statement could be used against the Executive as evidence that the executive did not receive the amendments they desired and have attempted to tack them on after the fact.

# posted by

mm : 9:01 PM

Come on, "Relatively obscure Judge Alito" and "substantially more distinguished Judge McConnell"? Your points about Alito's attractiveness to the administration because of his views on executive power may be right, but the comparison is hyperbole. There is no material difference in qualification between these two.

# posted by

Helvidius : 9:54 PM

what might be termed the "liberated" (and possibly "unfettered") Executive

An alternate view of this would be that Alito views the Executive Branch as CO-EQUAL with the Legislative Branch. Apparently Prof. Levinson believes that the two branches are not co-equal - that the Legislative Branch's actions always take precedence over the Executive Branch's actions. I wish Prof. Levinson would let us in on the reasoning behind this thinking.

# posted by

Al : 12:15 AM

What is this "signing statement" jazz? If the executive signs a bill, it becomes law according to the plain language and, if neccessary to clarify it, the legislative history.

Agree about Alito, he should have a tougher time of it now, because enough Republican Senators jealous of their own and the institution's power could refuse cloture or even defuse the nuclear option on that ground. One of the best moments in American history was when the SCt ordered Nixon's tapes over.

# posted by

Anonymous : 2:14 AM

Senator Specter described the NSA spying revelations as "inappropriate." This is so mealy-mouthed that I do not hold out much hope that he will aggressively seek to derail the Alito nomination. He should delay Alito's hearing until after a hearing into the illegal spying on American citizens, before a 'Justice Alito' has a chance to rule on any of the upcoming cases which challenge the 'Unitary Executive' theory.

I'm one who believes the NSA/FISA spying was largely political in nature, and would not be surprised to learn that Sen. Specter's phones and computer communications were monitored, to assure compliance.

# posted by

Dacelo : 7:45 AM

I agree with the first commentator (president can always veto a bill if disagrees). This is particularly true given the reality that the executive office is typically crucial in creating and shepherding legislation thru the congress. This seems merely a pathetic attempt to change a law that for political reasons, the president won't veto.

# posted by

ron : 11:57 AM

The branches are "co-equal", but they do not have the same functions. The entire point of the limited nature of the veto is that's up or down- the office of president has no necessary role in the formulation of the legislative policy underlying it. And if you do a very tight textual reading of the constitution, the president has no legislative role in the constitution, since the text explicitly states that "All legislative powers herein granted shall be vested in a Congress..."

# posted by

Worker 17 : 1:35 PM

Let's not forget that the President does not need to actually "approve" a bill for it to become law. If the President just lets the bill sit for ten days (excluding Sundays), it automatically becomes law. And if the President vetoes it, Congress can override.

# posted by

steveh2 : 3:17 PM

Professor,

I applaud your efforts here. Especially as I was slightly critical of some aspects of the last Alito post (which was overall excellent).

Your analysis here elevates the general dialogue of Alito from well-meaning but futile exchanges of dicta from Youngstown, Curtis Wright, etc. Surprisingly (to me at least), Sunstein jumped right into that trap - his erroneous conclusions aside.

Already Armando at Kos, for example, has followed suit and is re-framing the analysis on this larger and more important focus. Others may do so as well.

This blog and your colleagues have an extremely important role to play imo. Back in the day, I helped critique Mark Tushnet's Red,White and Blue for its ideological approach. (1988 literally was another century).

But is precisely because Mark understands and recognizes ideology, he and others are equipped to confront, unmask and deal with this most ideological of American regimes.

I say this not to be merely lauditory of your blog. What makes Alito and the Executive exhaltation you underscore so well critical is that it unites and is embedded in each of the strands within the Administration's political base:
(a) over emphasized but still lethal neocons;
(b) corporate/transactional;
(c) Christian/religious (from quasi traditional to radical such as Reconstructionist Evangelicalism); (d) national security technocratic; (e) law and order old school Nixon silent majority types.

Each strand may disagree with the other on a given issue or political matter. But all are united in their covert (or overt in some cases) support for authoritarian/tradition-based rule. This is the Movement that is largely similar in function and origin to Italy and elsewhere in Europe in the 1920s and formally diagnosed by Schmitt after 1933.

A disdain for liberal democracy, the formal space created by procedural norms, empiricism, etc.

I am convinced that only those who are able to embrace, articulate and assert a counter ideology will be able to meet this Administration and overcome its ferbile drive for power. Alito is a good place to take a stand.

# posted by

Dr Leo Strauss : 4:10 PM

er, febrile . . . sorry, am hopeless without MSFT spell check.

# posted by

Dr Leo Strauss : 4:16 PM

A note to Ignorant Investor: Tell us: where is the veto power located in the constitution? Article II? Or Article I?

# posted by

Thomas : 1:36 AM

Alito argues that "the president's understanding of the bill should be just as important as that of Congress."

Which Levinson suggests means that courts, when faced with a conflict between legislative and executive understandings, should choose the executive's understanding. Levinson can't figure out what else Alito could be getting at, which suggests a remarkable lack of imagination on Levinson's part. Really, Sandy, haven't you anyone who can explain the difference between "co-equal" and "primacy"? Or who could explain that, to the extent that this is focused on or motivated by abuses in the use of legislative history, perhaps the answer, when faced with a conflict between legislative history and executive signing statements is, look at the goddamned text of the law.

# posted by

Thomas : 1:37 AM

If you're looking for a legal doctrine that is 'frivolous' and a 'clear mistake', how about Alito's claim that "the president's approval is just as important as that of the House or Senate". The Constitution allows the House and Senate to make law over the President's opposition with a 2/3 majority. No legislation can be passed without the approval of both Houses. So how can anybody possibly suggest that the president has as much authority in legislating as the Houses of Congress. Note also that the Constitution's provision deliberately waters down the executive authority under British law, where the Crown's veto was absolute.

It's also worth noting the the original intent, as shown by the practice of the earliest administrations, was that the veto should be rarely used. The first 6 Presidents averaged less than one veto every 4 years, and only of bills they regarded as unconstitutional. Jackson was the first President to veto a bill because he thought it was bad policy, which at the time was considered a bold extension of executive authority.

# posted by

Alex : 2:16 AM

Thomas,

You can read Sandy's posts on Alito and find that his normally fertile scholarly imagination is really not serving him well. Well, that's not entirely true. He imagines, for instance, that McConnell (a nominee I would happily support) is much more distinguished than the "obscure" Alito (by what standard obscure? as against other Circuit Judges or as against Oprah?), which is just plain silly.

But he can't conceive of a reason besides a nefarious plot to extend executive power that the extraordinarily disginguished Sam Alito, universally respected by his colleagues of all stripes, might have been nominated to the court. And of course, the fact that as a member of the executive branch he advocated its interests over those of the Congress provides great evidence that he would adopt the same arguments as a judge. Because one cannot imagine a lawyer who serves his client well when he acts as an advocate but then finds himself treating the issues differently on the bench. That would require such a leap of imagination. Or perhaps a slender knowledge of history, the norms of the profession, or basic human psychology.

It is quite frankly shameful that distinguished academics, when donning the "blogger" cap, abandon all pretense to be truth seekers, and instead troll around for whatever arguments might advance their political agendas. At least I hope it's a practice limited to blogging and not also reflective of what they do in front of students.

I do hope that this Administration will get a chance to nominate McConnell, however, when I presume we can expect Prof. Levinson's full-throated endorsement.

# posted by

T. More : 10:55 AM

I wonder why the Post article says, "if you combine this with Thayerism"; is there really evidence that Alito's a Thayerist?

# posted by

Dan : 11:05 AM

An alternate view of this would be that Alito views the Executive Branch as CO-EQUAL with the Legislative Branch.

Branch means branch; it doesn't mean leaf or twig, but it doesn't mean trunk or the whole tree either. Sure, the executive branch is no less important than the legislative or judicial ones. But it's separate, and different, meaning it does different things and has different responsibilities and duties.

None of which include crossing your fingers behind your back as you sign a bill into law. Bush had the veto power, that was his countermeasure in this case. He didn't use it. That's that, game over.

Especially since this law was passed to emphatically redeclare what the nation's policy about cruel, inhuman, degrading treatment, torture, and detainee treatment was. I'm not usually one for consulting legislative history -- the words should speak clearly enough for themselves. But in this case the history speaks clearly to the intent as well, and Bush can't pretend to ignore it.

The executive branch can decide how precisely to implement broadly granted authorities; it doesn't (or shouldn't) get to say when it will and won't enforce and obey a law that gives no leeway to do so.

In its constant attempts to circumvent, reinterpret, and/or ignore the laws of the land, the Bush administration is really behaving more like a criminal organization than a coequal branch of government.

# posted by

Thomas Nephew : 12:27 PM

I have been screaming about this since Roberts' nomination. The entire plot is to consolidate power into the executive office. these judges are all whores for an imperial presidency.

if those dickless wimps in congress don't stop them soon, they Cheney administration will dissolve the senate and formally declare the house of representatives irrelevant.

It's coming asheeple.

# posted by

Shifter X : 10:00 AM

Presidents nominate candidates for things to suit their agendas? The horror...

What any lawyer does for their clients may or may not say something about their own beleifs.

You've got a little something here, but it is very little.

As for a signing statement... a cute note for historians and little else. The executive branch, um, executes laws. The fact they have a "check" on legislative powers gives the President a chance to issue a statement, but there is no legal function implied... this is all so marginal, but it seems there is little else to say.

# posted by

wizard : 10:58 AM

One could view such signing statements as evidence of intent to commit high crimes and misdemeanors. This might make impeachment simpler. Ignorance or misunderstanding of the law is no excuse, especially not with combative reinterpretations.

# posted by

Mike Huben : 6:47 PM