Takeover, page 35
In June 1984, for example, while working in the solicitor general’s office, Alito had argued that high-ranking executive branch officials should be immune from lawsuits by victims of any illegal actions they took while on the job. His comments came as the Supreme Court considered a case involving illegal wiretapping by the Nixon administration. In 1970, Nixon’s attorney general, John Mitchell, gave the FBI permission to wiretap a group of Vietnam War protesters suspected of plotting to kidnap Henry Kissinger and to bomb utility tunnels near federal buildings. No judge had approved the decision to listen in on the group’s phone calls. In 1972, a jury cleared the protesters of any wrongdoing. That same year, the Supreme Court ruled in a different case that it was unconstitutional for the government to place domestic wiretaps without a warrant, even in national security matters. Prompted by that ruling, a man who had talked with one of the antiwar activists on the wiretapped line sued Mitchell personally, seeking financial damages for violation of his rights.
Mitchell’s lawyers argued that the suit should be dismissed. The courts had no power under the Constitution’s separation of powers, they said, to intrude on the executive branch by allowing lawsuits against the president’s top aides for actions they take in performing their official duties. The case wound through the courts for years. In 1982, in a different case, the Supreme Court ruled that, with rare exceptions, the president’s top aides can be held liable in civil lawsuits, but Mitchell pressed on with his objections. In 1984, as his case came before the Supreme Court, the Reagan administration had to decide whether to support Mitchell’s broader reading of executive branch immunity. Alito was assigned to review the case. In a seven-page memo dated June 12, 1984, Alito wrote that he agreed with Mitchell that executive branch officials should be immune from civil lawsuits, even when their actions are unconstitutional—although he also cautioned that the Reagan administration should be careful about using a Nixon-era case to push its views. He noted that Rehnquist would likely side with the Reagan administration over such a question but would have to recuse himself because he was a former Nixon official who had worked with Mitchell. “There are strong reasons to believe that our chances of success will be greater in future cases,” Alito added. “In addition, our chances of persuading the Court to accept an absolute immunity argument would probably be improved in a case involving a less controversial official and a less controversial era.”37
In November 1985, when Alito applied to move from the solicitor general’s office to the Office of Legal Counsel in Meese’s Justice Department, he wrote a fiery application letter intended to prove that he was “and always have been a conservative and an adherent to the same philosophical views that I believe are central to this administration.” Press stories about Alito’s 1985 application letter concentrated on the fact that he had written that he believed “the Constitution does not protect a right to an abortion” and that he had touted his membership in the Concerned Alumni of Princeton University, a group that had objected to admitting women to the formerly all-male school.38 The coverage tended to overlook another fact: Throughout the two-page letter, Alito repeatedly suggested that courts should defer to the “elected branches of government” as a matter of constitutional principle, not just in the area of “protecting traditional values” but also in security matters—the central front in the project to expand presidential power. “I believe very strongly in… the need for a strong defense and effective law enforcement,” he wrote. “… In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate.”39
Alito’s letter was convincing. The next month, he joined the Office of Legal Counsel and went to work answering constitutional questions that arose within the executive branch. One of his duties was to serve on the Litigation Strategy Working Group, a special committee of fifteen political appointees who served as a brain trust for the Reagan administration’s efforts to reshape the law in line with its ideological agenda. A major front in that war was to strengthen the power of the executive branch and diminish the influence of the courts and Congress. Alito took an active role in helping the committee advance the presidential-power project and, as noted earlier, was a prime mover in pushing Reagan to issue more signing statements in order to, as he wrote, “increase the power of the executive to shape the law.”40
Alito’s work with the Litigation Strategy Working Group would give him regular opportunities to develop and internalize an expansive theory of presidential power. On September 4, 1986, for example, Alito and the rest of the group met in the Lands Division Conference Room at the Justice Department for the sole purpose of discussing ways to turn aside “challenges to executive power.” According to a memo that laid out the day’s agenda, the group looked at such issues as ways to roll back restrictions on a president’s “military power and related emergency powers”; to undermine statutes that set up independent officials within the executive branch who could not be fired by the president; to defend and expand “executive privilege”; to expand the power of the president to enter into “executive agreements” with foreign powers instead of treaties in order to cut out the role of Senate ratification; and to expand the president’s absolute power of “executive discretion in foreign affairs and national security matters.” Also up for discussion that day was “judicial usurpation of power… against the executive branch.” This included court interference in “military management” and, in an echo of the Nixon-vintage wiretapping case, rulings against civil lawsuit immunity for executive branch officials.41
That meeting of the Litigation Strategy Working Group was one of the last Alito would attend. A few months later, in March 1987, he became the U.S. Attorney for the District of New Jersey, where he focused on prosecuting criminals. Nevertheless, Alito kept a close eye on developments in the presidential-power project—including a major setback for advocates of the Unitary Executive Theory, the Supreme Court’s 7–1 June 1988 ruling in the independent counsel case.
In 1989, Alito denounced the independent counsel decision during an introduction to a debate sponsored by the conservative Federalist Society. “The Supreme Court hit the doctrine of separation of powers about as hard as heavyweight champ Mike Tyson usually hits his opponents,” Alito said. He characterized the decision as an endorsement of a “congressional pilfering” of presidential power, and he embraced Scalia’s championing of the Unitary Executive Theory as a “brilliant but very lonely dissent.”42 At the same event, Alito also praised then–solicitor general Charles Fried, one of the speakers at the debate he was introducing, for having “argued and won a great separation of powers victory” in a 1986 case involving a law intended to end budget deficits. Until struck down, the law had given the comptroller general—a congressional official who could not be fired by the president—the power to impose automatic spending cuts on the federal budget to achieve deficit-reduction goals. The Court ruled that Congress could not give such an “executive” power to an official accountable to the legislative branch.
In November 2000, Alito spoke at another Federalist Society convention, this time in Washington’s storied Mayflower Hotel. In his remarks, he said, “In the thirteen years since I left [the Reagan-era Office of Legal Counsel], I have not had much occasion in my day-to-day work to think about the constitutional powers of the Presidency,” but he made it clear that his views had not changed. Calling the Unitary Executive Theory the “gospel according to OLC,” Alito said that he was as firmly committed to advancing this basis for expanding presidential power as he had been when he worked for Meese. He acknowledged that the Unitary Executive Theory, by freeing the president of many checks and balances, “can be used to accomplish things that most probably would not favor.” But, he said, he still favored such a presidency.43
7.
When the Senate Judiciary Committee held its confirmation hearings for John Roberts in September 2005, the issue of executive power had received scant attention amid the clamor over his views on abortion, civil rights, and other social issues. But two events on the eve of Alito’s January 2006 confirmation hearings changed the atmosphere, sharply intensifying the Senate’s interest in presidential authority. First, on December 16, 2005, the New York Times published its article revealing that the Bush-Cheney administration had authorized the military to monitor Americans’ international phone calls and e-mails without obtaining a judge’s approval, seemingly a direct violation of a Watergate-era law regulating domestic surveillance. Then, on December 30, Bush issued the signing statement that undermined the McCain Torture Ban. The two high-profile claims that a president has the power to defy federal laws set off a brief firestorm in Congress, ensuring that Alito would be questioned more closely about his views on executive power.
On the first day of the hearings, January 9, 2006, Senator Richard Durbin said in his opening statement that he would focus on Alito’s endorsement of the Unitary Executive Theory. “That’s a marginal theory at best, and yet it’s one that you’ve said you believe,” said the Illinois Democrat. “This is not an abstract debate. The Bush administration has repeatedly cited this theory to justify its most controversial policies in the war on terrorism. Under this theory, the Bush administration has claimed the right to seize American citizens in the United States and imprison them indefinitely without charge. They have claimed the right to engage in torture, even though American law makes torture a crime. Less than two weeks ago, the White House claimed the right to set aside the McCain torture amendment that passed the Senate ninety to nine. What was the rationale? The Unitary Executive Theory, which you have supported.”
Durbin’s colleague Senator Charles Schumer, Democrat of New York, also weighed in. “The president is not a king, free to take any action he chooses without limitation by law,” he said. “… In the area of executive power, Judge Alito, you have embraced and endorsed the theory of the unitary executive. Your deferential and absolutist view of separation of powers raises questions. Under this view, in times of war the president would, for instance, seem to have inherent authority to wiretap American citizens without a warrant, to ignore congressional acts at will, or to take any other action he saw fit under his inherent powers. We need to know, when a president goes too far, will you be a check on his power or will you issue him a blank check to exercise whatever power alone he thinks appropriate?”
The next day, when questioning began, Senator Edward Kennedy was the first to quiz Alito about his endorsement of the Unitary Executive Theory. Alito, however, turned the question aside by saying that in his Federalist Society speech he had been talking only about the idea that a president should have total control over lesser executive branch officials, not whether a president has the inherent presidential power to act beyond the will of Congress. Similarly, when asked about Bush’s signing statement on the McCain Torture Ban in light of Alito’s 1986 memo advocating for expanded use of signing statements, Alito simply described what a signing statement was. His answers were enough to turn aside Kennedy’s thrust, and it was a tactic he repeated throughout the hearings whenever the topic of his views of executive power came up. When asked about the Unitary Executive Theory, he simply and narrowly described what it was. Alito carefully never said that he disagreed with the concept of expansive inherent powers for the president. He said only that inherent powers had not been the subject of his 2000 speech.
As for many of the senators asking Alito questions, they seemingly failed to grasp that the basis for extraordinary power claims being advanced by the Bush-Cheney legal team lay in combining the Unitary Executive Theory with its vision of vast “inherent” powers. In other words, by merely describing the unitary executive chocolate without disclosing his view of the inherent power peanut butter, and what he believed the two could become if united, Alito got away with never telling the senators what they really wanted to know.
Throughout the hearings, the closest any senator got to pinning Alito down on executive power was an exchange on January 11 with Senator Patrick Leahy. Leahy bore in on the real questions. For example, citing the Unitary Executive Theory in the case of an independent agency, the Federal Election Commission, Leahy asked, “Could the president, if he didn’t like somebody they were investigating, a contributor or something, could he order them to stop?” Alito responded that Congress could establish some independence for executive branch officials—but then provided an enormous potential loophole: Any restrictions on firing the officials would be constitutional only if they “don’t interfere with the president’s exercise of executive authority.” Leahy pressed on:
LEAHY: Could [the president] order the FBI to conduct surveillance in a way not authorized by statute?
ALITO: … He has to follow the Constitution and the laws of the United States. He has to take care that the laws are faithfully executed. If a statute is unconstitutional, then the president—then the Constitution would trump the statute. But if the statute is not unconstitutional, then the statute is binding on the president and everyone else.
LEAHY: But does the president have unlimited power just to declare a statute—especially if it’s a statute that he had signed into law—to then declare it unconstitutional, he’s not going to follow it?
ALITO: If the matter is later challenged in court, of course the president isn’t going to have the last word on that question, that’s for sure. And the court would exercise absolutely independent judgment on that question. It’s emphatically the duty of the courts to say what the law is when constitutional questions are raised in cases that come before the courts.
LEAHY: That’s an answer I agree with. Thank you.
But Alito did not address whether a president could declare a statute unconstitutional and violate it in a case that was impossible to challenge in court, as would commonly be the situation in a matter involving the separation of powers. Alito similarly conceded little on unrelated areas of the law, such as whether he would vote in line with his 1985 statement “The Constitution does not protect a right to an abortion.”
Democratic leaders, knowing that they did not have the votes to stop Alito, decided that the best strategy was to vote en masse against him to show a united front. But the two Massachusetts senators, Kennedy and John F. Kerry, defied party leaders and called for a filibuster. The effort was applauded by liberal activist groups—especially those focused on abortion rights—but in the end it succeeded only in splitting the Democratic Party. Dashing party leaders’ hopes of at least looking united against Alito, 24 Democrats voted in favor of the filibuster and 19 voted against it, echoing the party’s 22–22 split on the Roberts nomination a few months earlier.44
On January 31, 2006, the Senate confirmed Alito to be the nation’s 110th Supreme Court justice by a vote of 58–42, a largely party-line count that was overshadowed by the failed filibuster. Alito was sworn in that same day, replacing O’Connor and joining the Court in the middle of its 2005–2006 term.
8.
Justice Alito arrived on the Supreme Court in time to participate in the most important case of the term—and one of the most important cases involving presidential power in years. On March 28, 2006, the case of Hamdan v. Rumsfeld—the Guantánamo military tribunals case that Roberts had ruled on at the appeals court level just prior to Bush’s decision to nominate him as O’Connor’s replacement—was argued before the Supreme Court. Before the arguments began, Roberts himself stood up and left the courtroom; because the Court was hearing an appeal of his own decision, he recused himself from participation. Alito stayed, listening intently in his black robe from the far end of the bench—the seat where the newest justice sits—as Hamdan’s lawyer, Georgetown law professor Neal Katyal, urged the Court to overturn the Roberts panel’s ruling.
Katyal argued, as he had before, that Bush had no authority to set up the tribunals without consulting Congress, that the detainees should be able to invoke the Geneva Conventions in court as a guide to their minimum rights, and that the charge of conspiracy to commit terrorism was invalid because conspiracy is not a war crime under international law. “This is a military commission that is literally unbounded by the laws, Constitution, and treaties of the United States,” Katyal said.
Alito was skeptical. He pressed Katyal to explain why Hamdan should be able to challenge his military trial up front, instead of waiting to see whether he was convicted and then raising the issue on appeal. “In criminal litigation, review after a final decision is the general rule,” Alito noted. Wasn’t Katyal seeking to give this enemy combatant an extra right that normal civilian defendants don’t get?
Replied Katyal: “Justice Alito, if this were like a criminal proceeding, we wouldn’t be here. The whole point of this is to say we’re challenging the lawfulness of the tribunal itself. This isn’t a challenge to some decision that a court makes. This is a challenge to the court itself, and that’s why it’s different than the ordinary criminal context that you’re positing.”45
Three months later, the Supreme Court handed down its decision, delivering a definitive judgment on the presidential-power theories advanced by the Bush-Cheney legal team. Bush had sought to limit the rights given to the detainees, saying that as president in a time of war he could handle such cases as he saw fit. He had established the commissions by executive order in November 2001 without consulting Congress, and he had established rules that allowed prosecutors to use secret evidence and confessions obtained by coercive interrogations. He had declared that the Geneva Conventions did not protect detainees in the war on terrorism, not even the basic prohibition against “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
