Two things were mentioned in

Two things were mentioned in consecutive  posts over at Balkinization, but they haven"t really been linked, though once again they show the connection between the Alito nomination and the current abuses of executive power.

First, Marty Lederman notes that on signing the Defense Appropriations Bill, the President added a "never mind" to the McCain amendment banning torture:

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.

 

This sentence, which basically says that the administration intends to do whatever they want to do if they decide for themselves that its related to the War on Terror, comes in the context of a "signing statement." As an article a couple days ago in the Post, and a more expansive explanation of these issues by Sanford Levinson, indicate, the very idea of the signing statement is something relatively new, cooked up by Alito himself during the Reagan administration, as a way to strengthen the hand of the president over Congress. Most judges (Justice Scalia is an outspoken exception) believe that the intent of Congress in passing a bill, as expressed in committee reports, floor statements by supporters, colloquies, etc., can be an important tool in interpreting the law. Why not let the President spin the law his own way?, Alito asked.

"Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

As Levinson notes, part of the target here is internal to the executive branch: the president is trying to direct how the executive branch’s own lawyers, such as the State Department Legal Advisor’s Office, should interpret the law. These lawyers operate independently from the White House and often refuse to embrace expansive definitions of executive power such as the "unitary executive" theory expressed in the McCain "never mind" statement. Not surprisingly, these legal offices were excluded from the legal analysis of the NSA domestic surveillance program as well as the justifications for torture.

This is way beyond my legal depth (though certainly not Levinson’s), but it seems to me there is a simple reason to reject Alito’s seemingly sensible recommendation, exemplified by the McCain statement. It gives the President a kind of after-the-fact last word on the matter that legislators don’t have. Legislative expressions of intent generally involve some kind of consent. If a group of legislators who support a bill don’t like the interpretation suggested in the committee report, they can put their own statement in the record, or vote against it. The president can even weigh in and threaten to veto the bill if expressions of legislative intent are made that he’s not comfortable with. It’s a multilateral process. But once the bill is out of Congress, the President is acting totally alone in declaring his intent in signing it. Consider, for example, what would have happened if before the amendment had passed, or while the final language was being negotiated with Cheney, the president had said exactly what he said in the signing statement. McCain and the bill’s other supporters might have gone back and tightened the language, or they might have added their own expressions of intent. But by the time the President signs a bill, Congress is done with it. There’s no opportunity for consent.

In a way, this reminds me of the debate over the line-item veto, which the Supreme Court ruled in 1998 was unconstitutional, even if Congress granted the authority by statute, because, as Justice Stevens put it, "there is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes."

Fortunately, according to the Post, courts have not given much credence to signing statements. But their influence on other executive branch lawyers is no minor matter.

This is an incredibly big deal. A president who can sign a bill and then declare that he’ll obey it if and when he feels like it is truly a step too far. And because Alito seems to have played a key role in setting up this situation, the confirmation hearings are the right place for the debate on this practice to play out.