Bench Memos

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Life Is Too Short


Thanks to a link by Kathryn on The Corner, I have just now seen a post from Armando of Daily Kos that finds it remarkable that Bench Memos has not responded to some argument that Professor Sanford Levinson made about Alito’s memo on presidential signing statements. Armando even comments that “the fact that Ed Whelan has NOT written a word on the subject is especially telling” and somehow means that I am “concerned about this—knowing that Bush’s NSA Surveillance scandal is working towards a full boil.”

I suppose that I should be flattered that Armando expects me to respond to every attack on Alito, no matter how strained, and is eager to read meaning into my silence. In fact, I don’t spend my days perusing left-wing blogs to see what the latest silly attack on Alito is. I became aware of Levinson’s argument only when Stuart Buck called to my attention the other evening his powerful response to it:

There are two things that are wrong with this analysis. First, Levinson does not specify why he thinks Alito believes in Thayer’s “clear mistake rule” as to presidential interpretive statements. Second, now that we can read the memo for ourselves, there’s no need to speculate about what Alito “presumably” meant. Alito never argued that one should give “priority” to the President. Quite the contrary. His memo listed five “primary obstacles” to the use of presidential signing statements, and the most significant was number 5:

“Because presidential intent has been all but ignored in interpreting the meaning of statutes, the theoretical problems have not been explored. For example: In general, is presidential intent entitled to the same weight as legislative intent or is it of much less significance? . . . What happens when there is a clear conflict between the congressional and presidential understanding? Whose intent controls?”

Alito was posing those questions, not answering them. And notably, later in the memo, Alito recommends, “We should concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress.”

The virtue of mercy would seem to counsel against any further response to Levinson’s argument.

As for my supposed concern about the NSA surveillance issue, I think that I have made sufficiently clear that I view the six-degrees-of-separation-type arguments being made by the Left as ludicrous. I also think that the American public cares far more than Daily Kos evidently does about having a President who vigorously exercises his lawful authority to monitor foreign terrorists. (I have not examined the legal issues surrounding the NSA surveillance and therefore offer no comments on them.)


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