Bench Memos

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Jeffrey Rosen on Alito and Presidential Powers


Jeffrey Rosen’s New Republic essay on Judge Alito and presidential powers is deeply disappointing. Rosen’s core contention that the unitary-executive theory somehow translates into an expansive view of the scope of executive powers is belied by the fact that Justice Scalia, the strongest advocate of the unitary executive on the Court, adopted a more restrictive view of presidential powers than even Justice O’Connor did in the Hamdi enemy-combatant case. Rosen relies at length on Justice Thomas’s dissent in that case (and on his invocation of the unitary executive) but fails even to note Scalia’s very different view.

Rosen complains that Alito confused two metaphors – “lowest ebb” and “zone of twilight” – in Justice Jackson’s famous concurring opinion in the steel seizure cases, and he somehow infers from that confusion that Alito may be “less interested in strictly construing presidential power.” But a far more plausible hypothesis is that Alito doesn’t reason by metaphor.

Rosen even finds that Alito’s utterly innocuous 1986 memo on presidential signing statements raises “troubling questions”. Alito testified that he didn’t see “any connection between the concept of the unitary executive and the weight that is – that should be given to signing statements in interpreting statutes.” Rosen says that the connection is “obvious” because the Bush Administration has cited the unitary executive lots of times in presidential signing statements. Well, yes, it is obviously – but trivially — true that if there were no presidential signing statements, the Bush Administration couldn’t have cited the unitary executive in them. But the more pertinent point is that there’s nothing about the use of presidential signing statements that has any implications for the theory of the unitary executive, much less for the distinct issue of the scope of executive power.

Rosen’s essay is replete with unwarranted charges that Alito was “evasive,” was “either confused or less than candid,” was “ill-prepared or . . . being deliberately evasive,” and was “disingenuous”. Rosen even finds Alito’s testimony that he hadn’t read the works of one academic “surprising at best.”

I had come to expect much better from Rosen.


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