January 10, 2006
Legal Context
Focus of Hearings Quickly Turns to Limits of Presidential Power
By ADAM LIPTAK, NY TIMES

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WASHINGTON, Jan. 9 - The opinion is more than 50 years old, and it is not even binding precedent. But just minutes into the Supreme Court confirmation hearings of Judge Samuel A. Alito Jr., it took center stage and seemed to lay the groundwork for the questions he will face concerning his views on the limits of presidential power.

The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program, will plainly be a central theme when questioning of Judge Alito begins Tuesday morning.

Senator Arlen Specter, the Republican chairman of the Judiciary Committee, discussed only three decisions by name in his opening statement: Justice Jackson's concurrence in the 1952 case, Youngstown Sheet and Tube Company v. Sawyer, and two abortion cases, Roe v. Wade and Planned Parenthood v. Casey.

Quoting from the Jackson concurrence and referring to the surveillance program, Mr. Specter said, "What is at stake is the equilibrium established by our constitutional system."

Senator Patrick J. Leahy, the ranking Democrat on the committee, made a similar assertion in noting that Judge Alito would replace Justice Sandra Day O'Connor if he was confirmed. "She upheld," Mr. Leahy said, "the fundamental principle of judicial review over the exercise of government power."

That was a reference to Justice O'Connor's decisive opinion turning back another broad assertion of executive power in Hamdi v. Rumsfeld, a 2004 case in which the court allowed a man held without charges as an enemy combatant to challenge his detention, over the objections of the Bush administration.

"We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," Justice O'Connor wrote for herself and three other justices in 2004. She cited one case as precedent for that proposition: Youngstown.

Judge Alito, in his brief, mostly biographical opening statement, did not address Youngstown or any other case. But he did seem to nod in the direction of the current controversy. "No person in this country, no matter how high or powerful, is above the law," he said, "and no person in this country is beneath the law."

Chief Justice John G. Roberts Jr., at his confirmation hearings in September, endorsed Justice Jackson's concurrence. It has, Judge Roberts said, "set the framework for consideration of questions of executive power in times of war and with respect to foreign affairs since it was decided."

Most of the discussion of executive power on Monday came from Democratic senators. One Republican, Senator Lindsey Graham of South Carolina, argued for an aggressive view of executive power.

"In a time of war," Mr. Graham said, "I want the executive branch to have the tools to protect me, my family and my country."

In 1952, the Supreme Court faced a set of clashing interests in the Youngstown case broadly similar to those in the current surveillance controversy. That April, President Truman seized the nation's steel mills to prevent an expected labor strike, saying that national security during the Korean War required uninterrupted access to steel.

In June 1952, in a 6-to-3 decision, the Supreme Court rejected the various legal rationales offered by the Truman administration for the seizures. Many of those rationales have echoes in the justifications offered by the Bush administration for its detention of enemy combatants, harsh interrogations and domestic surveillance without court approval.

Writing for the court, Justice Hugo L. Black said the president's power was extensive but not unlimited.

"Even though 'theater of war' be an expanding concept," Justice Black wrote, "we cannot with faithfulness to our constitutional system hold that the commander in chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not for its military authorities."

There are, of course, obvious differences between the Youngstown case and recent efforts to combat terrorism. The seizure of the steel mills, for instance, was a wholly domestic matter. The surveillance program, by contrast, monitors international communications between the United States and other nations. The Korean War was, moreover, a conventional one, while terrorism involves a more amorphous threat.

It is not entirely clear why Justice Jackson's concurrence has had such a lasting impact. It may be because he spoke with particular authority, having argued for expansive executive power as President Franklin D. Roosevelt's attorney general, much as Judge Alito did when he was a lawyer in the Reagan administration.

"That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country," Justice Jackson wrote in the concurrence, "will impress anyone who has served as legal adviser to a president in time of transition and public anxiety."

He proposed three categories to judge the constitutionality of assertions of executive power. His framework may be thought to endorse or reject the Bush administration's position, depending on how various Congressional actions are understood.

The president's authority is at its maximum, Justice Jackson wrote, when he "acts pursuant to an express or implied authorization of Congress." The administration says a resolution authorizing the president to use military force after the Sept. 11 attacks was such authorization.

In his opening statement, Mr. Graham said he was troubled by that argument. "I've got some problems," he said, "with using a force resolution to the point that future presidents may not be able to get a force resolution from Congress if you interpret it too broadly."

Justice Jackson's second category was "a zone of twilight" in which Congress has taken no action. In that case, he said, "any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law."

The third category is where the president takes action at odds with the will of Congress. A 1978 law, the Foreign Intelligence Surveillance Act, appears to require court approval before monitoring of the sort the administration has acknowledged.

In this third area, Justice Jackson said, the president's power is "at its lowest ebb," and claims of presidential authority "must be scrutinized with caution."

Exploring the limits of presidential power after 9/11

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Lessons from Abraham Lincoln's use of executive power during the Civil War
The use of discretionary executive power by presidents grows in times of national crisis. Constitutions can limit that expansion, but only if the extraordinary use of executive power is exercised openly and temporarily. So concludes research by political scientist Benjamin A. Kleinerman (Virginia Military Institute) that draws lessons from the use of executive power by President Abraham Lincoln during the Civil War.
Kleinerman's article is entitled "Lincoln's Example: Executive Power and the Survival of Constitutionalism" and appears in the December issue of Perspectives on Politics, a journal of the American Political Science Association. It is available online.

As demonstrated by the current NSA eavesdropping controversy, after 9/11 the Bush administration has robustly employed executive power to meet the threat posed by terrorism. These and other actions have raised questions about the proper sphere for executive power in a constitutional system during a crisis. Kleinerman's research speaks directly to this current debate as Lincoln's actions are cited by both advocates and opponents of expanded executive power. The author draws three lessons from Lincoln:

First, "justifications&should pass the 'necessity test' within which the preservation of the constitutional order itself is at stake." Accordingly, "a concern for the public good is insufficient grounds for the executive to exercise discretionary power." This, Kleinerman notes, is because "only political necessity and not popular or congressional approval can legitimate any discretionary action taken by a president."

Second, "discretionary action should only take place in extraordinary circumstances and should be understood as extraordinary." Lincoln himself articulated clear boundaries on his use of discretionary power and repeatedly emphasized that powers assumed in times of crisis must be given up when the crisis subsides. This is important, the author observes, because as in the case of Nixon "Lincoln's precedent can empower presidents to take actions they might not otherwise take, serving as their& justification for taking any action deemed necessary for the public good." Lincoln also expended significant effort to foster public attachment to the Constitution to compel presidents to justify their behavior in terms of their constitutional responsibility. To do so today would require a restoration of "the notion of executive prerogative to the sphere of public discourse."

Third, "a line must separate the executive's personal feeling and his official duty. He should take only those actions that fulfill his official duty, the preservation of the Constitution, even&if the people want him to go further." Legislation such as the Patriot Act points toward the institutionalization of expanded executive power--but once such power is entrenched, it is no longer prerogative or discretionary. "Because [Lincoln's] overriding concern was the survival of a constitutional Union," states Kleinerman, "any departure from the bounds of the Constitution must also point back to its restoration."

The question of the proper role of executive power today touches on core questions of constitutional order and American politics, including checks and balances, popular will, executive prerogatives, civil liberties, and national security. The author affirms that "we must beware of simply asserting that current presidents must 'be like Lincoln'" and concludes by asking "are we&a constitutional people attached enough to the rule of law so as to prevent the overextension of executive power? In other words, are we capable of insisting upon our Constitution even when presidents do not?"

The American Political Science Association (est. 1903) is the leading professional organization for the study of political science and has 15,000 members in 80 countries. For more information about political science research visit the APSA's media website, www.politicalsciencenews.org.

Published on Saturday, January 7, 2006 by CommonDreams.org
Alito and the Limits of Presidential Power
by Jeremy Brecher and Brendan Smith

The Supreme Court confirmation hearings for Samuel Alito represent the first major battle in an emerging constitutional war over the authority of the President. Revelations that President Bush authorized the National Security Agency to spy on US citizens without court approval have shifted the focus of the hearings from domestic social issues to what distinguished University of Texas law professor Sanford Levinson describes as "the major issue before the Court, and the nation, both now and in the foreseeable future.... (Namely] the ability to stave off ever more aggressive assertions of executive power uncheckable by either Congress or the judiciary."

Both Senate Judiciary Committee chair Arlen Specter and ranking Democrat Patrick Leahy warned Alito they will question him about executive powers. Leahy recently told the Baltimore Sun that many votes in the Senate will be influenced by "how directly Alito answers questions about the NSA program and presidential powers."

Alito will certainly be asked about a memo he drafted in 1984 as a Justice Department lawyer in which he wrote that an Attorney General who countenanced wiretapping without a warrant should have "absolute immunity" against suits from the victims. His position is even more disturbing because it involved surveillance not of foreign terrorists but of American peace activists.

Time magazine reported that in 2001 Alito acknowledged that he is a strong proponent of the theory of the "unitary executive" under which all executive branch power is vested in the President--and any incursion on it by Congress should be resisted. This theory has been used by the Bush Administration to justify various extralegal activities, including the infamous torture memos. In Hamdi v. Rumsfeld, Justice Clarence Thomas used the "unitary executive" theory to argue that the Supreme Court's restrictions on the President's unilateral power to lock up US citizens constituted "judicial interference"--a view rejected by the Court's majority.

If we are in a war to preserve the Constitution from executive usurpation, the opening salvos will be the questions the Judiciary Committee puts to Alito. Here are questions in eight key subject areas Samuel Alito should be asked as the hearings unfold:

Domestic Spying

President Bush recently admitted to authorizing the National Security Agency to eavesdrop on Americans' phone calls and e-mails without a court order, despite the 1978 FISA law forbidding domestic wiretapping without a warrant. University of Chicago constitutional law professor Geoffrey Stone observes, "Some legal questions are hard. This one is not. The President's authorizing of NSA to spy on Americans is blatantly unlawful and unconstitutional."

But in his 1984 Justice Department memo, Alito argued that the Attorney General was entitled to absolute immunity from claims concerning illegal domestic wiretapping.

Judge Alito, do you still believe that the Attorney General and other executive branch officials retain absolute immunity and therefore are not subject to the rule of law? Do you believe that the President can defy an express statutory mandate by Congress?

Usurping Congressional Power

Article 1 of the Constitution states: "All legislative powers herein granted shall be vested in a Congress of the United States." According to the Washington Post, Alito, ignoring the plain meaning of "all legislative powers," argued in a 1986 memo written for the Reagan Administration that the President should "routinely issue statements about the meaning of statutes when he signs them into law" to grant the President "the last word" in order to "increase the power of the Executive to shape the law." President Bush issued at least 108 of these "interpretive signing statements" in his first term alone, many of which "rejected provisions in bills that the White House regarded as interfering with its powers in national security [and] intelligence policy."

Judge Alito, do you still believe that the President can usurp the legislative authority of Congress? Do you deny that the Constitution entrusts Congress, and not the executive branch, with lawmaking power?

Torture and Accountability

President Bush recently signed into law the "McCain amendment" to a military spending bill outlawing the "cruel, inhuman and degrading treatment" of detainees. But in the process he reserved the right under another one of Alito's "signing statements" to bypass the torture ban under his powers as Commander in Chief. David Golove, a New York University law professor who specializes in executive power issues, told the Boston Globe that the signing statement means that Bush believes he can still authorize harsh interrogation tactics when he sees fit.

Judge Alito, do you believe that the President's powers as Commander in Chief allow him to authorize torture in certain circumstances? Do you believe the Constitution grants the executive the power to defy an express Congressional ban on torture?

Enemy Combatants

In Hamdi v. Rumsfeld, the Supreme Court rejected the President's claim that he has the unchecked authority to lock up anyone he deems an "enemy combatant." Justice Sandra Day O'Connor wrote that the Administration's position "cannot be mandated by any reasonable view of the separation of powers, as this approach only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." At the same time, the Administration held José Padilla, another US citizen declared an enemy combatant, without charges or a hearing for more than three years.

Judge Alito, what do you believe are the limits on the President's power to interfere with the rights of the nation's citizens in wartime? Are there executive powers that should remain unchecked by the courts?

Habeas Corpus

In Rasul v. Bush, the Supreme Court rejected the President's assertion that US courts lack the jurisdiction to hear the claims of Guantánamo prisoners that they are being held illegally. These claims are brought by means of a writ of habeas corpus--a legal procedure that has limited the powers of kings and Presidents alike for hundreds of years and was the first act passed by the first US Congress in 1789. The Supreme Court has described the writ as "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

Judge Alito, does the executive have the power to annul habeas corpus? Does the President have the right to lock people up without having to defend the action before a court of law?

War Powers

Despite the war powers granted Congress under Article I Section 8 of the Constitution, the Bush Administration has repeatedly asserted the right to initiate further attacks beyond Iraq without Congressional approval. Secretary of State Condoleezza Rice recently testified that the President could attack Syria or Iran without any authorization from Congress. According to James Madison, "In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department."

Judge Alito, do you agree with Madison's assessment? Do you believe that executive powers allow the launching of another war without authorization from either the United Nations or Congress? Which branch of government do you believe has the right to send the country to war?

War Crimes

The War Crimes Act of 1996 makes it a federal crime for any American to commit grave violations of the Geneva Conventions, including the "willful killing, torture or inhumane treatment" of detainees. In a January 25, 2002, memo to President Bush, then-White House Counsel Alberto Gonzales declared provisions of the Geneva Conventions "obsolete" and urged the President to opt out of the Conventions in order to reduce "the likelihood of prosecution under the War Crimes Act." Soon after, President Bush declared that the Geneva Conventions did not apply to "unlawful combatants" captured in Afghanistan.

Judge Alito, if executive branch officials violated the Geneva Conventions, would you agree that they could be prosecuted under the War Crimes Act?

The US Anti-Torture Act makes torture and conspiracy to commit torture a crime. According to a recent report by the House Judiciary Committee Democratic Staff, there is a "prima facie case that the President, Vice President and other members of the Bush Administration violate a number of federal laws, including...international treaties prohibiting torture and cruel, inhuman and degrading treatment." FBI e-mails released under the Freedom of Information Act disclose torture techniques authorized by executive order signed by President Bush and approved by Defense Secretary Donald Rumsfeld.

Judge Alito, if executive branch officials were found guilty of conspiring to commit torture, do you believe the Supreme Court should hold them subject to the Anti-Torture Act?

Presidential Powers and the Rule of Law

Senator Russ Feingold recently asserted that President Bush "believes that he has the power to override the laws that Congress has passed." But Feingold noted that this is not how our democratic system of government works. "The President does not get to pick and choose which laws he wants to follow. He is a President, not a king."

Judge Alito, explain your view of the differences between the Constitutional powers of an American President and those enjoyed by an absolute monarch.

The Alito hearings represent more than just the confirmation of a judge. Like the hearings that led to the rejection of Robert Bork's nomination to the Supreme Court, they embody a struggle over the very definition of constitutional government and the rights of the people. Democrats and Republicans, liberals and conservatives--indeed, all who wish the United States to be a constitutional democracy and not an autocracy, should see it as the opening battle in a larger constitutional war that will escalate with the renewal of the Patriot Act, NSA hearings, prewar intelligence and torture investigations, and calls for censure and impeachment.

This first battle provides believers in the rule of law an opportunity to frame the issues, strengthen their alliances and educate the public for the war to come. To do so, they should insist that any Supreme Court nominee must take an unambiguous stand on "the Court's role as a check on overreaching by the executive."

Brendan Smith and Jeremy Brecher are the editors, with Jill Cutler, of In the Name of Democracy, American War Crimes in Iraq and Beyond (Metropolitan, 2005). Brecher, a historian who has authored more than a dozen books including Strike!, writes for the Nation magazine among other publications. For his documentary film work he has received five regional Emmy Awards. Legal scholar Brendan Smith (blsmith28@gmail.com), a former senior congressional aide specializing in defense and human rights policy, is coauthor of Globalization from Below, and has written for the Los Angeles Times, The Nation, and the Baltimore Sun.