Senator Patrick Leahy wanted a straight answer to a simple question. "Wouldn't it be constitutional for the Congress to outlaw Americans from using torture?" the senator asked Judge Samuel Alito during his Supreme Court confirmation hearings last week. Here was Alito's reply: "Well, senator, I think the important points are that the president has to follow the Constitution and the laws. ... But, as to specific issues that might come up, I really need to know the specifics."
This wasn't exactly the answer Leahy was looking for. And Alito's evasive response was typical of his statements about executive power. Throughout the hearings, Senate Democrats repeatedly pressed Alito to explain his apparent embrace of the "unitary executive" theory--that is, the claim that the president's executive power cannot be infringed upon by Congress or the courts. Repeatedly, Alito dodged the question. He also misstated the law of presidential power on three occasions--inadvertently mischaracterizing landmark opinions by Justices Clarence Thomas and Robert Jackson--and denied the obvious connection between the unitary executive theory and the president's efforts to influence the Supreme Court's interpretation of laws through "signing statements."
A close reading of Alito's answers raises concerns that he might indeed be an advocate of broad and unchecked presidential power. If Alito fulfills these fears on the Court, he could support those who insist that the president's power in the war on terrorism is essentially unconstrained. And unconstrained power can lead to abuses--such as torture, illegal surveillance, or detention without charge--that undermine the core values of American society.
In its most modest form, the unitary executive theory dates back to Franklin Roosevelt's administration, and it has been championed by liberal and conservative scholars and administrations--including Carter's and Clinton's--as a way of asserting the president's ability to retain control over independent agencies. But, as Beth Nolan, acting head of the Office of Legal Counsel (OLC) under Clinton, testified in the Alito hearings, during Alito's tenure in the Justice Department, the OLC began using the unitary executive theory in a new manner. It issued an opinion asserting that the president's authority to conduct covert international activities is "plenary, exclusive, and subject to no legal limitations," adding that Congress has limited powers in foreign affairs.
During the last decade, this invocation of the unitary executive theory to expand the president's wartime authority was championed most enthusiastically by John Yoo, a former clerk for Thomas and a former deputy assistant attorney general in the OLC. In 1996, Yoo wrote his first scholarly article asserting that the Framers of the Constitution intended "to cure legislative excess by erecting a unitary, independent executive" who had broad power to conduct war without congressional oversight. In President Bush's Justice Department, Yoo was most famous for his contribution to memos arguing that the Geneva Convention and criminal laws prohibiting torture do not apply to enemy combatants and that the president can spy on American citizens despite a federal law that says the opposite. In his confirmation hearings, Alito said he had never read Yoo's writings or those of "anyone else" who had defended the broad theory of unitary executive power during wartime. Given the prominence of these arguments, Alito's claim seems surprising at best.
During Alito's confirmation hearings, much of the questioning centered on a speech Alito delivered to the Federalist Society in 2000. Recalling his time in the Reagan administration, Alito said, "We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president. And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure." Asked by Leahy to explain what he meant in the speech, Alito said: "To my mind, the concept of the unitary executive doesn't 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." In other words, Alito claims to understand the theory as a way of asserting the president's ultimate ability to control or to fire executive branch officials. When Senator Richard Durbin asked Alito if he agreed with Thomas's view that a wartime president has inherent powers beyond those explicitly given to him by Congress, Alito replied, "I don't think that the unitary executive has anything to do with that."
Alito was either confused or being less than candid. In the Hamdi case in 2004, a four-justice plurality, led by Justice Sandra Day O'Connor, said the president could indefinitely detain suspected enemy combatants seized on the battlefield in Afghanistan. This was permissible because Congress had implicitly authorized the detention in the resolution that it passed on September 14, 2001, authorizing the president to use "all necessary and appropriate force" against the perpetrators of the September 11 attacks. In his radical dissenting opinion, Thomas went much further. The president, Thomas suggested, could detain enemy combatants even without an ambiguous congressional authorization, because "the Founders intended that the President have primary responsibility--along with the necessary power--to protect the national security and to conduct the Nation's foreign relations. They did so principally because the structural advantages of a unitary Executive are essential in these domains."
Asked by Durbin whether he agreed with Thomas's dissent, Alito's memory again failed him. "I don't recall that Justice Thomas uses the term `unitary executive' in his dissent," Alito said. "It doesn't stick out in my mind that he did. If he did, he's using it there in a sense that's different from the sense in which I was using the term." Once again, either Alito was ill-prepared or he was being deliberately evasive.
Even if he doesn't explicitly embrace Thomas's views on the unitary executive, Alito might still ally himself generally with a broad view of executive power on the Court. He could, for example, follow the Bush administration's implausible interpretation of the September 14, 2001, use-of-force resolution as an implicit authorization for the president to ignore other federal statutes banning domestic surveillance and torture. Senator Arlen Specter--as well as Senate Democrats--made it clear that he opposes this effort to twist the useof-force resolution into a presidential blank check. But, although Alito repeated platitudes about the president not being above the law, he refused to say how broadly he would construe the use-of-force resolution.
In an effort to discover Alito's views on the use-of-force resolution, several senators asked him whether he agreed with a famous opinion by Jackson questioning Harry S Truman's authority to avert a strike by seizing the steel mills in 1952. In that opinion, Jackson wrote that the president's authority was at its "lowest ebb" when he acted in the face of explicit congressional opposition. Jackson went on to write that the president was in a "zone of twilight" when Congress's intentions were unclear. Alito inadvertently mischaracterized Jackson's opinion, suggesting that congressional opposition would put the president in Jackson's "twilight zone" rather than in the category where executive power was weakest. The lack of facility with Jackson's opinion--as well as a failure to remember that O'Connor had relied on it in upholding the detention of enemy combatants seized on the battlefield--raises the concern that Alito is less interested in strictly construing presidential power than in reining in the power of Congress. (Indeed, when asked about cases limiting congressional power, such as the Supreme Court decisions striking down federal bans on guns in schools and violence against women, Alito described the relevant case law even more precisely and accurately than John Roberts.)
A final series of troubling questions concerned Alito's endorsement of presidential "signing statements"--that is, statements by the president, when he signs a law, setting out his interpretation of its meaning. In a Justice Department memo in 1986, Alito endorsed signing statements as a way for the president to influence judicial interpretation. Pressed to explain this memo, Alito said he was merely discussing "theoretical problems," adding, "I don't see any connection between the concept of the unitary executive and the weight that is--that should be given to signing statements in interpreting statutes."
In fact, the connection is obvious. As Leahy noted, The Wall Street Journal has reported that Bush has cited the powers of the "unitary executive" 103 times in presidential signing statements. The two most notorious examples are the signing statements that Bush attached to the recent federal laws banning torture and restricting the ability of courts to review the habeas corpus claims of enemy combatants. In his signing statements, Bush interpreted the two laws to mean virtually the opposite of what Congress obviously intended. He reserved the right to ignore the torture ban. And he said that the law restricting habeas corpus review of enemy combatants might prevent the Supreme Court from hearing a pending challenge to the detention of Osama bin Laden's alleged driver, even though Senator Carl Levin, one of the co-sponsors of the law, explicitly said that it would not affect pending cases. Alito declined to say whether he agreed that signing statements like this should influence the Supreme Court. But his refusal to acknowledge the connection between his past support for signing statements and the Bush administration's use of them to ignore laws with which it disagrees seems disingenuous.
If Alito is confirmed, it's possible that he will surprise his opponents and supporters by taking a more limited view of executive power than he displayed in his hearings. After all, Judge J. Michael Luttig, at one point also a candidate to replace O'Connor on the Supreme Court, had initially endorsed Thomas's view that the president can detain citizens as enemy combatants without congressional authorization--even citizens seized in the United States, such as Jose Padilla. But, after the Bush administration, afraid of being rebuffed by the Supreme Court, tried to transfer Padilla from military to civilian custody, Luttig wrote a courageous and blistering opinion suggesting that the administration had lied to the courts in suggesting that Padilla could not be given an ordinary criminal trial because he posed a grave danger to the country.
And Luttig isn't alone. For moderates who have been inclined to give the Bush administration the benefit of the doubt in the war on terrorism, the recent revelations about the scope of a clearly illegal domestic spying program represent a turning point. The administration's unabashed effort to defend its conduct with implausible legal arguments--such as the claim that Congress authorized a program that federal law obviously forbids--have exhausted any reservoir of trust among open-minded citizens. Even if Congress makes its views crystal clear, the administration has reserved the right to ignore any laws that it finds inconvenient. The only thing standing between the president and unchecked power, therefore, is the Supreme Court. That's why, for Republican as well as Democratic senators who believe judges should interpret the law, not invent it, Alito's testimony about executive power must be a cause for concern.
Jeffrey Rosen is the New Republic's legal affairs editor.