KENNEDY CHALLENGES ALITO ON EXECUTIVE POWER
CAN ALITO STAND UP TO AN OVERREACHING PRESIDENT?
Washington, DC: Today in his rounds of questioning of Judge Alito, Senator Kennedy challenged Judge Alito on his views of executive power. At a time when Americans have learned that the President has been conducting domestic spying, Senator Kennedy is troubled by Judge Alito's record of being overly deferential to executive power - whether exercised by the president, the attorney general or law enforcement officials. Kennedy asked Judge Alito to explain his record and whether the average citizen would be able to get "a fair shake" from him when the government is a party.
"No one is above the law -- not even the President. We need to know whether Judge Alito will stand up to a President -- any President -- who ignores the Constitution and uses arguments of national security to expand executive power at the expense of individual liberty. We need to know whether Judge Alito will ever be able to conclude that the President has gone too far," Senator Kennedy said today at the second day of the hearings.
Senator Kennedy raised relevant cases, writings, and speeches that demonstrate Judge Alito's belief in the doctrine of the "unitary executive branch." The Wall Street Journal describes the doctrine of it as the foundation of the Bush Administration's assertion of power to determine the fate of enemy prisoners and jail U.S. citizens as enemy combatants without charging them. President Bush has referred to this doctrine at least 110 times, while Ronald Reagan and the first President Bush, combined, used the term only seven times. President Clinton never used it.
Attached is: 1) Senator Kennedy's opening remarks to today's questions for Judge Alito 2) A fact sheet on Judge Alito's record on executive power 3) A description of the relevant cases 4) President Bush's signing statement on the McCain torture legislation 5) A chart on the use of the "unitary executive" 6) Alito's 2000 speech to the Federalist Society
SENATOR EDWARD M. KENNEDY REMARKS AT THE NOMINATION HEARING OF JUDGE SAMUEL ALITO (As Prepared for Delivery) In just the past month, Americans have learned that the President instructed the National Security Agency to spy on them here at home. They've seen an intense public debate over when the FBI can look at your library records. They've heard the President announce that he accepted the McCain amendment barring torture. But then, just days later, as he signed it into law, the President decided he could still order torture whenever he believed it was necessary. No check. No balance. No independent oversight. Judge Alito, we all want to protect our communities from terrorists. But we don't want our children and grandchildren to live in an America that accepts torture and eavesdropping on American citizens as a way of life. We need an independent and vigilant Supreme Court to keep that from happening -- to enforce the constitutional boundaries on Presidential power and blow the whistle when the President goes too far.
Congress passes laws. But this President says that he has the sole power to decide whether or not he has to obey those laws. Is that proper? I don't think so. But we need justices who can examine this issue objectively, independently and fairly. That's what our Founders intended and what the American people deserve.
Judge Alito, we must know whether you can be a justice who understands how to strike the proper balance between protecting our liberties and protecting our security -- a justice who will check even the President of the United States when he has gone too far.
Chief Justice Marshall was that kind of justice when he told President Jefferson that he had exceeded his war-making powers under the Constitution. Justice Jackson was that kind of justice when he told President Truman that he could not use the Korean War as an excuse to take over the nation's steel mills. Chief Justice Burger was that kind of justice when he told President Nixon to turn over the White House tapes. And Justice O'Connor was that kind of justice when she told President Bush that "[a] state of war is not a blank check for the President when it comes to the rights of the nation's citizens."
I have very serious doubts that you would be that kind of justice, Judge Alito. Your record shows, time and time again, that you have been overly deferential to executive power -- whether exercised by the president, the attorney general or law enforcement officials. Your record shows that -- even over the strong objections of other federal judges -- you bend over backwards to find even the most aggressive exercise of executive power reasonable. But perhaps most disturbing is the almost total disregard in your record for the impact of these abuses of power on the rights and liberties of individual Americans.
And so, Judge Alito, we need to know whether the average citizen can get a fair shake from you when the government is a party. Whether you will stand up to a President -- any President -- who ignores the Constitution and uses arguments of national security to expand executive power at the expense of individual liberty. Whether you will ever be able to conclude that the President has gone too far.
No one is above the law, Judge Alito, not even the President. The Justices of the Supreme Court sometimes have to say "no" to the President. They are the last check and balance to protect the rights and liberties of the American people. Given your record, I have real doubts that you would be the kind of Justice who would say "no" to the President of the United States when he is wrong.
JUDGE ALITO AND EXECUTIVE POWER Background The Constitution established three co-equal branches of government in order to provide checks and balances on any one branch. In the famous "Steel Seizure" case, the Supreme Court ruled emphatically in 1952 that the Constitution's balance of powers cannot be sacrificed to the President's Commander-in-Chief power -- even in wartime. And, more recently, the Supreme Court stated that the Guantánamo detainees were entitled to challenge their detention in federal court. Justice O'Connor, whose vacant seat Judge Alito hopes to fill, wrote "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." Some of the darkest moments in the Court's history are rooted in its failure to check assertions of presidential power. In an infamous decision during World War II, the Court allowed the Roosevelt Administration to establish internment camps for Japanese Americans. The President signed an executive order forcing Americans to move out of their homes and into camps. The Court, unprepared to challenge the power of the Executive, allowed Americans to be stripped of their rights and herded into camps. Judge Alito's statements, writings, and decisions suggest an unmistakable tendency to favor strong Executive authority. In his 1985 Department of Justice job application, Alito wrote that he believes "very strongly in the supremacy of the elected branches of government." He expressed concern about the "usurpation by the judiciary of decisionmaking authority." Judge Alito stated that the courts had eroded the power of the other branches to make laws. Judge Alito opposed decisions of the Warren Court, which gave individuals protection against government officials and guaranteed equitable representation in elections. In a 1986 memorandum, Alito said that the Attorney General should be absolutely immune from prosecution for authorizing illegal wiretaps -- even if he knew that his actions were unconstitutional. This position suggests that Judge Alito would not question the President's assertion of the right to spy on Americans without obtaining a court order. In a 1988 debate, Alito praised Justice Scalia's lone dissent in a case that upheld the Independent Counsel Act. He insisted that the Supreme Court had unconstitutionally restricted Executive power. Under that view, Judge Alito would likely disapprove of an investigation of the Executive branch that the President could not halt. In a 2000 speech to the Federalist Society, Judge Alito endorsed the supremacy of the Executive power over Congress' power to establish independent agencies to carry out government functions. And in case after case in the last fifteen years, Judge Alito has ruled in favor of law enforcement agencies even in the face of egregious abuses of individual rights. Even after the strip-search of a ten-year old girl, the denial of medical care to an incarcerated mentally ill man, and the armed eviction of farmers from their land, Judge Alito insisted that the "reasonableness" of law enforcement actions should not be questioned. Does Judge Alito think the system of checks and balances to prevent abuses of power is unnecessary? He defers to near absolute Executive power with extremely limited oversight by the courts. This is an especially troubling position at a time when the President has abused power and claimed Executive authority to detain American citizens indefinitely, permit torture, and conduct electronic surveillance of American citizens in their homes -- all without any judicial oversight and contrary to laws passed by Congress.
KEY EXECUTIVE POWER CASES
Mellott v. Heemer 161 F.3d 117 (3rd Cir. 1998) A group of dairy farmers declared bankruptcy and their property was sold at public auction. They were ordered to vacate the premises. However, they refused to leave. In response, a team of five deputy marshals forcibly evicted the farmers from their former property. The farmers claimed that the marshals used excessive force in conducting the eviction. The dairy farmers sued the deputy U.S. marshals. The plaintiffs claimed that the defendants violated their Fourth Amendment right to be free from unreasonable seizures and their Fifth Amendment right to substantive due process. The defendants moved for summary judgment on the grounds of qualified immunity. The trial court denied the motion, and the defendants appealed (the Government is allowed to appeal immediately an adverse ruling on qualified immunity). Judge Alito reversed the trial court's order. He ruled that the marshals acted reasonably and therefore were entitled to qualified immunity. Judge Rendell dissented and argued that the jury should decide whether the marshals violated the plaintiffs' constitutional rights.
Doe v. Groody 361 F3d 232 (3rd Cir. 2004) Police officers searched a residence for drugs, pursuant to a search warrant. Inside the house, the officers met the suspect's wife and their ten-year-old daughter. The officers took the two females to an upstairs bathroom and stripped searched them. No drugs were found. The plaintiffs filed a lawsuit against the police officers claiming that the officers violated their Fourth Amendment rights by performing the strip search. The parties conducted discovery and filed motions for summary judgment. The police officers argued, in part, that the lawsuit should be dismissed because they were entitled to qualified immunity. The trial court granted summary judgment to two officers, but denied qualified immunity to four others (who were directly involved in the strip search). The defendants appealed (the Government is allowed to appeal immediately an adverse ruling on qualified immunity). The Third Circuit majority affirmed the trial court and held that the four officers were not entitled to qualified immunity. Judge Alito dissented and argued that: (1) the strip searches were authorized by the search warrant, and (2) even if the strip searches were not authorized, the officers were entitled to qualified immunity.
United States v. Lee, 359 F.3d 194 (3d Cir. 2004) In this case, Judge Alito defended the government's use of audio and video monitoring devices even in the absence of warrants. "[W]e are not aware of evidence that the installation of recording devices to monitor meetings attended by a cooperating individual has led to the sort of abuse that the Padilla court feared. Nor is it intuitively obvious that there is much risk of such abuse." This opinion affirmed a conviction for conspiracy based on the warrantless audio and video monitoring of conversations between the defendant and a government informant in a hotel room. It precipitated a vigorous dissent from Judge McKee.
Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001) The court, in an opinion by Judge Alito, held that government agents had violated a couple's constitutional rights by excessively detaining them without probable cause, interrogating them without informing them of their Miranda rights, and conducting a body pat-down search of the wife when she was wearing only a nightgown. "Dr. Leveto's detention," he wrote, "arguably increased the stigma imposed by the agents' search, for it allowed coworkers to see how Dr. Leveto was being treated by the authorities and prevented Dr. Leveto from responding to client needs. . . . Moreover, Dr. Leveto's detention involved the inconvenience and indignity of a forced ride with IRS agents to his home and back to his office."
Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995) Four innocent bystanders were mistakenly caught in a police raid. The police pointed guns at them, handcuffed them for twenty-five minutes, and searched them. They alleged Fourth Amendment violations. The trial judge granted summary judgment for the defendant police officers. The Third Circuit majority reversed, and Judge Alito dissented: "I share the majority's sympathy for the Bakers' plight. It was a most unfortunate coincidence that they happened to arrive at the scene of a drug search just as the officers were arriving to execute the warrant. Their experience must have been terrifying. It is also most unfortunate that, prior to the expiration of the statute of limitations, the Bakers did not ascertain the identities of the officers who allegedly engaged in the conduct that is claimed to have violated their constitutional rights. Sympathy for the Bakers, however, does not justify a decision that ignores the deficiencies in the summary judgment record. I therefore dissent from the decision of the majority insofar as it reverses the district court's award of summary judgment."
BUSH SIGNING STATEMENT REGARDING McCAIN BAN ON TORTURE President's Statement on Signing of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006" Today, I have signed into law H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006." The Act provides resources needed to fight the war on terror, help citizens of the Gulf States recover from devastating hurricanes, and protect Americans from a potential influenza pandemic. Sections 8007, 8011, and 8093 of the Act prohibit the use of funds to initiate a special access program, a new overseas installation, or a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President's authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007, 8011, and 8093 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President. Section 8059 of the Act provides that, notwithstanding any other provision of law, no funds available to the Department of Defense for fiscal year 2006 may be used to transfer defense articles or services, other than intelligence services, to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations, until 15 days after the executive branch notifies six committees of the Congress of the planned transfer. To the extent that protection of the U.S. Armed Forces deployed for international peacekeeping, peace enforcement, or humanitarian assistance operations might require action of a kind covered by section 8059 sooner than 15 days after notification, the executive branch shall construe the section in a manner consistent with the President's constitutional authority as Commander in Chief. A proviso in the Act's appropriation for "Operation and Maintenance, Defense-Wide" purports to prohibit planning for consolidation of certain offices within the Department of Defense. Also, sections 8010(b), 8032, 8037(b), and 8100 purport to specify the content of portions of future budget requests to the Congress. The executive branch shall construe these provisions relating to planning and making of budget recommendations in a manner consistent with the President's constitutional authority to require the opinions of the heads of departments, to supervise the unitary executive branch, and to recommend for congressional consideration such measures as the President shall judge necessary and expedient. Section 8005 of the Act, relating to requests to congressional committees for reprogramming of funds, shall be construed as calling solely for notification, as any other construction would be inconsistent with the constitutional principles enunciated by the Supreme Court of the United States in INS v. Chadha. The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch. Also, the executive branch shall construe sections 8106 and 8119 of the Act, which purport to prohibit the President from altering command and control relationships within the Armed Forces, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief. The executive branch shall construe provisions of the Act relating to race, ethnicity, gender, and State residency, such as sections 8014, 8020 and 8057, in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution's Fifth Amendment. The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005. Language in Division B of the Act, under the heading "Office of Justice Programs, State and Local Law Enforcement Assistance," purports to require the Attorney General to consult congressional committees prior to allocating appropriations for expenditure to execute the law. Because the President's constitutional authority to supervise the unitary executive branch and take care that the laws be faithfully executed cannot be made by law subject to a requirement to consult with congressional committees or to involve them in executive decision-making, the executive branch shall construe the provision to require only notification. At the same time, the Attorney General shall, as a matter of comity between the executive and legislative branches, seek and consider the views of appropriate committees in this matter as the Attorney General deems appropriate. Certain provisions in the Act purport to allocate funds for specified purposes as set forth in the joint explanatory statement of managers that accompanied the Act or other Acts; to make changes in statements of managers that accompanied various appropriations bills reported from conferences in the past; or to direct compliance with a committee report. Such provisions include section 8044 in Division A, and sections 5022, 5023, and 5024 and language under the heading "Natural Resources Conservation Service, Conservation Operations" in Division B, of the Act. Other provisions of the Act, such as sections 8073 and 8082 in Division A, purport to give binding effect to legislative documents not presented to the President. The executive branch shall construe all these provisions in a manner consistent with the bicameral passage and presentment requirements of the Constitution for the making of a law. GEORGE W. BUSH THE WHITE HOUSE, December 30, 2005.
Number of times that the "unitary executive" has been used by an Administration
President Reagan: 1
President George HW Bush: 6
President Clinton: 0
President George W. Bush: 110 * to date
Source: Christopher Kelley, Miami University; cited in Jess Bravin, "Court Pick Endorsed Theory of Far-Reaching Authority; Tenet of Bush White House," Wall Street Journal
EXCERPT FROM ALITO'S 2000 FEDERALIST SOCIETY SPEECH (Full speech available as PDF upon request)
" the case for a unitary executive seems, if anything, stronger today than it was in the 18th Century. As we all know, however, the Supreme Court has not exactly adopted the theory of the unitary executive. Instead (to try to simplify a great many cases) it seems to have taken something of the two-track approach."