Kennedy also spoke of Alito’s “clear record of support for vast presidential authority, unchecked by the other two branches of government.” Others spoke similarly. None of them offered any real evidence bearing on the question of how Alito would likely rule in cases turning on the scope of executive power.
Here’s the way Durbin tries to make the same claim as Kennedy. “As a government lawyer, you pushed a policy of legislative construction designed to make congressional intent secondary to presidential intent. You wrote that ‘the President will get in the last word on questions of interpretation.’”
This is grossly misleading. Alito didn’t say or imply that congressional intent should be “secondary.” Durbin is distorting the meaning of the quote he uses. Alito was arguing that presidents should issue “signing statements” offering their interpretation of the laws they sign. In context, it is clear that those statements would not be “the last word” in the sense of being binding on anyone else—there is no suggestion that the courts would have to consider the president’s interpretation as more authoritative than the interpretations of legislators, or even that the courts should so consider it.
All Alito said was that the signing statement would be “the last word” only in that it would (necessarily) come after the legislative history in time. Moreover, he is not talking about this feature of the signing statements as a reason to do them—he is saying that a disadvantage of them is that congressmen will be unhappy that the president will get to put in a word after they can. The words preceding the quote Durbin uses are “Congress is likely to resent the fact that. . .”