No member of the Senate who takes seriously the oath they have sworn to defend the Constitution will vote to confirm judicial activist Samuel Alito’s nomination to serve on the U.S. Supreme Court.
To a greater extent than any nominee for the high court in recent memory, and very possibly in the long history of the country, Alito has placed himself clearly and unequivocally at odds with the original intent of the authors of the Constitution and the incontrovertible language of the document.
Alito is consistently on record as favoring steps by the White House to — in his words — ”increase the power of the executive to shape the law.” Twenty years ago, as a member of the Reagan administration, Alito was in the forefront of efforts to legitimize executive power grabs designed to allow presidents to take dramatic actions, sometimes in secret, without the advice and consent of Congress.
In a 1986 draft memo that advised Reagan and his aides on how to assure that their interpretations of official actions trumped those of the legislative branch, Alito acknowledged that his approach would put the White House at odds with the Congress. “The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction,” Alito argued. “In addition, and perhaps most important, Congress is likely to resent the fact that the president will get in the last word on questions of interpretation.”
The Reagan administration never fully embraced Alito’s proposals, but the Bush administration has. And Alito has been cheering the process of executive power enhancement on, telling the Federalist Society in an address five years ago that, “The president has not just some executive powers, but the executive power — the whole thing.”
The “whole-thing” approach adopted by George Bush and Dick Cheney has placed the current administration on a collision course with the Constitution. And it will be the Supreme Court that must sort through the wreckage.
With the high court widely expected to rule on multiple cases involving questions about presidential warmaking, the War Powers Act and domestic manifestations of the Bush administration’s so-called “war on terror,” the position of every justice on issues of executive authority becomes more significant. And potential changes in the court that might make it more deferrent to an executive branch that appears to be bent on eliminating all checks and balances — as the confirmation of Alito would surely do — are, necessarily, the most consequential of matters.
What is at issue here is not a grey area of the legal interpretation.
The authors of the Constitution were absolutely determined to prevent presidents from making war without the consent of Congress, and from abusing a state of war to curtail domestic liberties.
James Madison, the essential drafter of the Constitution who would go on to serve as the nation’s fourth president, expressed the concern of the founders when he wrote: “Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manner and of morals, engendered in both. No nation can preserve its freedom in the midst of continual warfare.”