In Alito Battle, Issues of Presidential Power Thrust to Forefront

Twenty years ago, a Reagan administration lawyer proposed that when the president signed a bill passed by Congress, he should use the occasion to declare how he interpreted it.

“The president’s understanding of the bill should be just as important as that of Congress,” wrote Samuel A. Alito Jr. in a 1986 memo. Spelling out those thoughts “would increase the power of the executive to shape the law,” he added.

President Bush put that idea to work two weeks ago in a little-noticed statement that followed his signing of the muchcelebrated McCain amendment, which forbids cruel, inhumane or degrading treatment of prisoners here and abroad.

His words appeared to turn a legislative defeat into a White House victory. Bush said he would back the torture ban so long as it didn’t conflict with his “constitutional authority” as commander in chief and his need to “protect the American people from further terrorist attacks.”

Moreover, Bush asserted that the measure would preclude federal courts from hearing all claims of mistreatment from prisoners abroad, a point disputed by some Senate Democrats.

This week, as Alito goes before the Senate Judiciary Committee, it will be seen whether Bush’s boldness in asserting powers of the presidency has complicated the confirmation prospects for his nominee to the Supreme Court. Along with abortion rights, executive power has moved to the forefront in the battle over Alito’s confirmation.

Democrats are questioning whether the prospective justice could be trusted to enforce the rule of law when the president says he is not bound by it. Bush’s lawyers assert the commander in chief has an “inherent authority” to act despite the law when he is seeking to defend the nation’s security during wartime.

“Does he believe in any checks on presidential power?” asked Sen. Charles E. Schumer (D-N.Y.) in previewing his questions. “Does he believe that warrantless wiretapping of Americans is constitutional?”

This surveillance issue was thrust onto the agenda last month when Bush acknowledged that he had authorized the National Security Agency, without seeking court permission, to intercept international phone calls or computer messages of people in the United States who had “known links” to terrorists abroad.

In 1978, Congress made it illegal for the government to conduct electronic surveillance in the U.S. without a judicial warrant. Bush’s lawyers did not explain why the NSA did not seek warrants from the special court created to weigh such requests.

Some computer experts familiar with the NSA operations say they believe the agency is regularly scanning thousands of calls and messages. In that event, it would be impractical, perhaps impossible, for officials to obtain individual warrants.

The secret NSA wiretapping order is not the only time Bush has said he stands above Congress and the courts.

In 2002, Bush said he could order the military to arrest and indefinitely detain Americans who were “enemy combatants” without charging them with a crime or giving them a chance to assert their innocence.

That same year, his lawyers said that as commander in chief, the president was free to order harsh treatment, even torture, to obtain crucial information from prisoners. This was so, they said, despite federal laws and U.S. treaties that prohibited the use of torture in all circumstances.

That White House position, along with widespread reports of abuse of terrorism suspects in U.S. military prisons, gave rise to the McCain amendment banning torture. Initially, the measure was strongly opposed by Bush, who decided to sign it after meeting with McCain and in the face of overwhelming support by Congress.

Sen. Edward M. Kennedy (D-Mass.) said Alito would be quizzed about Bush’s apparent willingness to defy Congress even as he signed the McCain amendment into law.

“The president goes ahead and signs it, and then says he retains the inherent power to go out and torture just like before,” Kennedy said. “It reflects an arrogance of power and a contemptuous attitude toward Congress.”

For his part, McCain issued a terse statement saying the new law did not include “a presidential waiver on the restrictions” against torture and inhumane treatment. “We believe the president understands Congress’ intent,” said McCain and Sen. John W. Warner (R-Va.), chairman of the Armed Services Committee. “Our committee intends through strict oversight to monitor the administration’s implementation of the law.”

Though Alito will be caught up in the dispute over the NSA wiretapping and the McCain amendment, it is not clear whether he shares the view that the president has a nearly unchecked power to protect national security.

For the last 15 years, Alito has been a judge on the U.S. 3rd Circuit Court of Appeals in Philadelphia. That court does not get many cases that test the limits of the president’s power.

A revealing statement came in November 2000 when Alito spoke at a Federalist Society meeting, reflecting on his time in the Reagan administration.

“We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president,” Alito said. “And I thought then, and I still think, that this theory best captures the meaning of the Constitution’s text and structure.”

In a sense, the “unitary executive” theory states the obvious. There is only one president. But many of its Reagan-era proponents applied this theory to say independent government agencies were unconstitutional because they were not under the direct control of the president.

Since the New Deal of the 1930s, Congress has created such independent agencies to regulate certain industries. The agencies include the Securities and Exchange Commission, which regulates the stock market; the Federal Communications Commission, which regulates broadcasters and the telecommunications industry; and the Federal Election Commission, which regulates campaigns. The most influential independent body may be the Federal Reserve Board, which regulates banking and the money supply.

Alito did not say whether he believes such independent agencies violate the Constitution, but senators say they intend to ask him about how he would apply the unitary executive theory.

Neil Kinkopf, a law professor at Georgia State University in Atlanta who served in the Clinton administration, said he hoped the senators would ask Alito about the president’s power to shape the law through the use of bill-signing statements.

Kinkopf described Bush’s statement on the McCain amendment as “cryptic, but ominous. It threatens our basic constitutional structure if the executive can make the law in the guise of executing the law,” he said.

But Alito’s supporters say it is unfair to link his Reagan-era memos to the current controversies.

“In every administration -- Democratic and Republican -- the lawyers believe in a robust understanding of the president’s powers,” said Charles J. Cooper, who recruited Alito in 1986 to be his deputy director to his legal staff under Atty. Gen. Edwin M. Meese III. “That doesn’t begin to answer the legal separation-of-powers question he would face as a justice. And his habit of mind is to be careful, neutral and very balanced.”

Another big issue probably facing Alito at this week’s hearings is abortion.

Sen. Arlen Specter (R-Pa.), the Judiciary Committee chairman, is a supporter of abortion rights, and he said he was troubled to learn in November that Alito had voiced strong opposition to Roe vs. Wade, the ruling that legalized abortion nationwide.

In 1985, Alito filed a job application with the Reagan White House in which he said he was “particularly proud” of the role he had played in the administration’s effort to persuade the Supreme Court “that the Constitution does not protect a right to abortion.”

This forthright statement will make it hard for Alito to avoid discussing his views on abortion. In September, then-nominee John G. Roberts Jr. steered around the topic by asserting that he was simply a lawyer representing his client when he served in the Reagan and George H.W. Bush administrations.

By contrast, Alito’s memo made clear that he agreed with the Reagan administration’s public position that Roe vs. Wade should be overruled.

That effort to overturn the ruling ultimately fell short by one vote when two Reagan appointees -- Justices Sandra Day O’Connor and Anthony M. Kennedy -- joined a 5-4 majority to affirm the abortion right in 1992.

If confirmed, Alito would succeed O’Connor.