Saturday, January 07, 2006

Alito on Presidential Power

The New York Times has an editorial on Alito, part of which reads:
PRESIDENTIAL POWER The continuing domestic wiretapping scandal shows that the Bush administration has a dangerous view of its own powers, and the Supreme Court is the most important check on such excesses. But Judge Alito has some disturbing views about handing the president even more power. He has argued that courts interpreting statutes should consider the president's intent when he signed the law to be just as important as Congress's intent in writing and passing the law. It is a radical suggestion that indicates he has an imperial view of presidential power.
This is quite unfair. Alito's suggestion that courts consider the intent of the President when interpreting a statute was by no means "radical," as can be seen by many historical examples (i.e., the Supreme Court's acknowledgment of Roosevelt's intent).

Even worse is the phrase "imperial view of presidential power." All that Alito said was that the President's intent in signing a bill into law ought to be as relevant as the legislature's intent -- when the law is being construed by a court. This necessarily means that the President is submitting to the authority of a court on a particular question of statutory interpretation. There is nothing "imperial" whatsoever about Alito's view.

If you want to see someone arguing for the proposition that Presidents should ignore limits on their constitutional powers -- which is what the Times insinuates -- you're not going to find any support from Alito. Instead, you'd have to look at the Office of Legal Counsel memo that Clinton solicited (discussed in my post below).


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