Judge Samuel Alito has stated in the course of the hearings that he subscribes to the concept of the unitary executive. While in the Reagan administration, he helped expand the practice of presidential statements upon signing of legislation. Presidential signing statements may express how a president interprets the law he is signing.

The Washington Post has reported that Alito wrote in 1986: “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. … [B]y forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history.”

CHRISTOPHER KELLEY
A leading expert on bill signing statements and the unitary executive, Kelley is author of a dissertation on the unitary executive and the presidential signing statement as well as the paper “Rethinking Presidential Power — The Unitary Executive and the George W. Bush Presidency.”

Kelley said today: “While other administrations have made use of bill signing statements since Reagan, the current administration is doing something unlike what others have done, citing the unitary executive an unprecedented number of times in these signing statements. Judge Alito seemed to indicate that the concept of the unitary executive simply applied to the executive controlling inferior offices, but he must know better. For instance, the ‘Oath’ clause of the Constitution demands that the president protect both the office of the presidency as well as the United States Constitution. To ensure the president lives up to that solemn oath, he issues a bill signing statement that may be used to refuse to defend or enforce provisions of law the president independently determines to be unconstitutional, as well as to define vague, unclear, or undefined provisions of law.

“Judge Alito, who has written on aspects of the unitary executive, clearly should know that his understanding of the unitary executive is more than his description offered during his Senate testimony.” Kelley is currently a visiting assistant professor in the department of political science at Miami University in Oxford, Ohio.

JENNIFER VAN BERGEN
Van Bergen wrote recent articles on the unitary executive doctrine: “The Unitary Executive: Is the Doctrine Behind the Bush Presidency Consistent with a Democratic State?” and “Scholar says Bush has used obscure doctrine to extend power 95 times.”

She said today: “Some aspects of the unitary executive are unobjectionable. The unitary executive doctrine is concerned with presidential powers in three ways: (1) presidential appointments and removals of officials in the executive branch, (2) presidential control over executive administration, and (3) the president’s interpretations of laws in the execution of his duty as president. The first two of these are not subject to much controversy now.

“As to the third, while clearly the president must interpret the laws he is sworn to uphold in order to uphold them, and in some instances a president may find that a law conflicts with his duties (which may be properly resolved in a number of ways: by working with Congress, bringing the issue to a federal court, etc.), when the doctrine is used as a means to utterly ignore laws and treaties, this is extremely troubling and may create a constitutional crisis.

“When President Bush signed the McCain amendment, which prohibited the use of torture when interrogating detainees, he also issued a presidential signing statement. By this statement, in which he relies on the unitary executive doctrine, Bush appears to grant himself the authority to bypass the very law he had just signed.

“This news came fast on the heels of Bush’s shocking admission that, since 2002, he has repeatedly authorized the National Security Agency to conduct electronic surveillance without a warrant, in flagrant violation of the Foreign Intelligence Surveillance Act, which was enacted in the aftermath of Nixon’s unlawful wiretappings specifically to curb unchecked executive branch surveillance.

“It seems clear that Bush believes he can ignore laws, even those that he signs or that specifically were meant to prohibit the executive from acting. Does this also mean he can ignore the courts when he wishes? We need to decide whether a president who is determined to ignore or evade the law has not acted in a manner contrary to his trust as president and subversive of constitutional government.

“Further, Congress should look very carefully at Alito’s views on the unitary executive doctrine. If Alito believes that the doctrine allows the president to ignore laws, disregard clear congressional intent, or override federal court determinations, Alito should not be confirmed.”

Van Bergen is author of the book The Twilight Of Democracy: The Bush Plan For America.
More Information

For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167