When I say that I don’t know how Judge Alito would vote on abortion, I mean that I don’t know for sure–not that there are no clues that suggest he would vote against Roe. But we have a much more radical ignorance about how he would vote on the scope of executive powers. We don’t even have many clues (although we do know that Alito supports the concept of the unity of the executive). Yet sweeping statements are being made about Alito’s supposed views.
Kate Michelman says that Alito was “eager to help the Reagan administration chip away at protections against government eavesdropping.” (Actually, he said that government officials should have qualified immunity from suits for money damages against them over wiretapping–not that they should have the power to wiretap. Michelman’s claim can be interpreted in a way that makes it technically accurate, but it is very misleading.
Edward Lazarus says that Alito “is on record supporting a very broad view of presidential authority,” and cites his advocacy of immunity as evidence–never mind that the Carter administration took a stronger view of that immunity than Alito did.
The Boston Globe editorially suggests that Alito would regard a state of war as “a blank check for the president when it comes to the rights of the nation’s citizens”–and offers, essentially, no evidence for this view.
The Los Angeles Times editorialists offer some evidence, but their case doesn’t make sense.
Alito in the past has asserted a radically expansive theory of presidential power.
In 1986, when he served in the White House Office of Legal Counsel, Alito wrote a memo arguing that the president should issue “interpretive signing statements” when signing legislation. Courts have long looked at “legislative intent” when necessary to clarify the meaning of a statute, but in his memo, Alito argued that a “president’s understanding of a bill should be just as important as that of Congress.” Senators should ask Alito exactly what he meant by this. On its face, the assertion threatens to undermine the fundamental constitutional principle that it is for Congress to write the laws and for the executive to, well, execute them.
For the LA Times, this spells a “willingness to expand the powers of the presidency beyond its constitutional boundaries.” Funny, I don’t recall the LA Times saying that about Clinton’s interpretive signing statements. There’s nothing “radically expansive” about this. When judges try to figure out what a law means, it is just as reasonable for it to consider evidence of what the president thought he was signing as at evidence of what Congress thought it was enacting. Nothing in Alito’s reasoning requires a court to give either those statements or legislative history any weight.
The New York Times calls the claim that signing statements are just as good evidence of a law’s meaning as legislative history “a radical suggestion that indicates he has an imperial view of presidential power.” That’s demented.
It’s certainly reasonable for senators to inquire about Alito’s views of presidential power and of the weight he would give, as a justice, to signing statements and legislative histories. But the notion that his advocacy of qualified immunity and his support for interpretive signing statements add up to opposition to restrictions on executive power is a fabrication–and one that Alito’s defenders need to challenge vigorously before it becomes conventional wisdom.