Opinion: Sotomayor hearings: Was Bush in the twilight zone?

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Sen. Dianne Feinstein turned her attention to the powers of the executive branch and raised President George W. Bush’s habit of using “signing statements” to pick and choose which portions of bills he would enforce and which he would disregard.

“We have seen the executive branch push the boundaries of power,” said Feinstein, “to collect communications of Americans without warrants and to detain people indefinitely without due process. The president in literally hundreds of signing statements indicated part of a bill he would disregard. He didn’t veto the bill, he signed the bill but said, ‘There are sections of the bill I will disregard.’ ”

So, asked Feinstein, “does the Constitution authorize the president to not follow parts of the laws duly passed by Congress he is willing to sign that he believes are an unconstitutional infringement on Constitutional authority?”

Replied Judge Sonia Sotomayor: “It’s a very broad question.”

Feinstein: “It’s one we are grappling with.”

“That’s why,” said Sotomayor, “I have to be very cautious in answering.”

And then she entered the twilight zone. Sort of.

‘Justice Jackson, in his concurrence in the Youngstown steel seizure case, and that involved President Truman’s seizures of steel factories’ -- that was a 1952 case in which the court dealt a stinging rebuke to what it considered to be Truman’s executive overreach -- ‘there, Justice Jackson … says that you always have to look at assertions by the president that he or she is acting within executive power in the context of what Congress has done or not done…. First, you look at, has Congress expressly addressed or authorized the president to act a certain way.” If so, she said, “then he is acting at his highest stature of power. If the president is acting in prohibition of an expressed or implied act of Congress, then he is working at his lowest ebb.

“If he is acting where Congress hasn’t spoken, then he is acting in what Justice Jackson called ‘the zone of twilight.’ ”

She concluded: “You can’t speak more specifically than that… Other than to say, a president can’t act in violation of the Constitution. No one’s above the law.”

-- Robin Abcarian

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