News Release

Presidential Powers


Boyle is professor of law at the University of Illinois. Today Sen. Patrick Leahy asked Judge Samuel Alito: “If the Congress passed a law prohibiting torture,” could the president “immunize people from prosecution if they violated our laws on torture?” Said Boyle: “Instead of just saying ‘no’ to Leahy’s question, Alito is prepared to quibble about the president’s ‘right’ to torture, and leave that ‘right’ open, depending upon the circumstances.”

Avery is president of the National Lawyers Guild and professor of constitutional law at Suffolk University. He said today: “Tuesday’s hearing has repeatedly cited Alito’s opening statement: ‘There is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law.'” Said Avery: “The phrases Alito is using are all carefully chosen, and are so elastic, as to suit an ideological purpose later on. Saying the president is not above the law begs the question as to what the law is. If you maintain, as does the Federalist Society, that the president has wide implied powers under the Constitution, then you can say he is not putting himself above the law, but that the law allows him to interpret it as he chooses, because he is the president. [Alito has been a longtime active member of the Federalist Society.] This is what President Bush has done when he asserts a right to do wiretapping without a court order. Similarly, President Bush is doing this type of thing when he refers to a ‘unitary executive’ when signing laws like the recent McCain amendment on torture. If you say that is appropriate, as Alito does, then you grant to the president the right to make law and interpret the law, which are functions which belong to the legislature and the courts. In effect, the president can then do as he wishes.”
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Cohn is a professor at Thomas Jefferson School of Law and wrote the just-released article “Alito Sounds Death Knell for Individual Rights.” She said today: “Alito this morning referred repeatedly to past precedent as settled case law when it was convenient for him to do so; he notably did not do so in the case of Roe v. Wade.”
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Eland is author of the recent piece “An Imperial Presidency Based on Constitutional Quicksand,” in which he wrote that “conservatives … tout their custodianship of the original intent of the framers of the Constitution. The nation’s founders would turn over in their graves if they were to learn of the modern imperial presidency. … In particular, the founders feared the power of a potent executive to impose wars upon the American people … much as the autocratic European monarchs of the day inflicted such costs on their subjects. Thus, the framers, contrary to conventional wisdom, gave most of the war powers to Congress.” Eland is director of the Independent Institute’s Center on Peace and Liberty and author of the books “The Empire Has No Clothes and Putting “Defense” Back into U.S. Defense Policy.
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Foley is assistant professor of law at Florida Coastal School of Law and author of the recent piece “Playing With Fire: Congress and Executive Power.” He said today: “Senators are asking Alito about executive power, which is good. But they should take a hard look in the mirror. They’ve been lying down while executive power has expanded. Just last month they gave the executive what is essentially absolute, unreviewable power over Guantanamo prisoners. This is a power which could ultimately be used against Americans.”
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For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167