Tuesday, January 10, 2006
More Data
My numbers on the use of the term "unitary executive" made it into the Senate Record today. Senator Edward Kennedy quoted the "Wall Street Journal" article that discussed the unitary executive. Here is what Senator Kennedy said, including responses by Judge Alito:
SEN. KENNEDY: Well, just -- Judge Alito, in that -- the same
signing statement undermining the McCain anti-torture law, the
president referred to his authority to supervise the unitary executive
branch. That's an unfamiliar term to most Americans, what The Wall
Street Journal describes 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 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 2000, 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're 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
who investigate executive 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?
JUDGE ALITO: Well, Senator, let me explain what I understand the
idea of the unitary executive to be. And I think it's -- there's been
some misunderstanding, at least as to what I understand this concept
to mean.
I think it's important to draw a distinction between two very
different ideas. One is the scope of executive power. And often
presidents or occasionally presidents have asserted inherent executive
powers not set out in the Constitution. And we might think of that
as, you know, how big is this table? The extent of executive power.
And the second question is, when you have a power that is within
the prerogative of the executive, who controls the executive?
And so you might -- and those are separate questions. And the
issue of, 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.
And the theory is, the Constitution says the executive power is
conferred on the president.
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.
I have had some requests asking in what areas do presidents issue constitutionally based signing statements. I have that information from Reagan-Clinton, and am currently working on adding the Bush information.
SEN. KENNEDY: Well, just -- Judge Alito, in that -- the same
signing statement undermining the McCain anti-torture law, the
president referred to his authority to supervise the unitary executive
branch. That's an unfamiliar term to most Americans, what The Wall
Street Journal describes 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 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 2000, 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're 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
who investigate executive 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?
JUDGE ALITO: Well, Senator, let me explain what I understand the
idea of the unitary executive to be. And I think it's -- there's been
some misunderstanding, at least as to what I understand this concept
to mean.
I think it's important to draw a distinction between two very
different ideas. One is the scope of executive power. And often
presidents or occasionally presidents have asserted inherent executive
powers not set out in the Constitution. And we might think of that
as, you know, how big is this table? The extent of executive power.
And the second question is, when you have a power that is within
the prerogative of the executive, who controls the executive?
And so you might -- and those are separate questions. And the
issue of, 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.
And the theory is, the Constitution says the executive power is
conferred on the president.
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.
I have had some requests asking in what areas do presidents issue constitutionally based signing statements. I have that information from Reagan-Clinton, and am currently working on adding the Bush information.
