It's Not Just Alito's Quandary: Reconciling Executive and Legislative Power

By DOUGLAS W. KMIEC

Monday, Jan. 16, 2006

In his confirmation hearings, Judge Samuel Alito opined clearly and generally that no one, including the president, is above the law. Yet questioners also attempted to pull Alito into a current, more specific controversy: The rift between the President and Congress over the McCain Amendment limiting interrogation practice or the scope ofexecutive power to undertake national security surveillance without specific court order pursuant to the Foreign Intelligence Surveillance Act (FISA).

Properly, Judge Alito refused to prejudge these questions - which could come before him as a Justice. Also properly, conceding the president to be Commander-in-Chief under the Constitution, Alito at the same time firmly acknowledged the limits of the Fourth Amendment and FISA.

Notwithstanding his well-considered, carefully-stated answers, Democratic members sought to portray Judge Alito as biased in favor of executive power, complaining of his belief in a unitary executive and his endorsement of presidential signing statements. Yet, as I will detail below, neither of these stances is at all "out of the mainstream," as Senator Schumer likes to say -- after all, the 1787 Constitutional Convention decisively rejected the concept of a plural executive.

Similarly, it should hardly be shocking - though Democrats seem to think so -- that when President Bush signed the recent McCain legislation clarifying limits on wartime interrogations, he stated that the new law would not be construed in a manner contrary to the president's powers. There is no reason to believe that Bush was claiming he would not follow the law rather than merely re-stating a necessary principle of all statutory law - namely, that it must be consistent with the Constitution.

The Core Dilemma: When the President and Congress Disagree on Interpretation

What happens, though, when the President's interpretation of a law differs from Congress' reading of what is constitutionally permissible?

In some ways, this is simply part of the ongoing dynamic of the separation of powers. The Framers expected that ambition would check ambition without the public being misled into thinking that we are facing a constitutional crisis. Congress and the President have the responsibility not to overreach, but if a trespass does occur, to address it without hyperbole or rushing into court.

Premature litigation has risks on both sides: for the president, it risks exposure of classified materials as well as a possible adverse ruling. Recall the Supreme Court's Youngstown decision, reprimanding Harry Truman for seizing the steel mills. A decision from the High Court not only permanently constrains presidential power on the particular issue before the Court, but also, by its formal, binding language, might unwisely constrain executive authority as to other unforeseen issues.

And Congress is not assured judicial victory. It is not inconceivable that the Court might reaffirm equally venerable precedent like Curtiss-Wright or the Prize Cases that the president has foreign affairs authority that is inherent in sovereignty and not fully dependent upon constitutional language. Admittedly, FISA's own statutory wartime exception (excusing the warrant requirement for a brief period following a war declaration) is in tension with a sweeping inherent power claim. However, without knowing the exact contours of the external threat or the reasoning for not relying upon FISA, the president's claim simply cannot be assessed.

The bottom line: There is not a scholar alive who could confidently say who would prevail in a clash between a federal statute and the President's assertion of inherent power vis-à-vis the McCain Amendment, or, for that matter, war-on-terror-related wiretapping.

Feingold's Back-and-Forth With Alito: The Possibility of Nonjusticiability

Judge Alito and Senator Feingold tossed this dilemma back and forth during some of the hearings' more intelligible moments. Feingold seemed to want the judge to state categorically that in a clash between Congress and the President over a statute (such as McCain or FISA), the statute would prevail. But if the president does have power derived from the Constitution, then the Supremacy Clause - which ensures that the Constitution trumps statutes -- obviously precludes the kind of simple answer Feingold was trying to elicit.

Judge Alito knew this. Thus, lacking the specific facts of an actual case, briefing, argument, and deliberation, he properly gave only an outline of what he described as a "momentous constitutional issue" - one that the Court might even find to be a nonjusticiable political question. (A legal question is "nonjusticiable" when it is held to be not susceptible to court resolution. When the Supreme Court finds a dispute nonjusticiable, it lacks jurisdiction, and can reach no result, one way or the other).

When the Constitution supplies no manageable standard by which to give resolution to a particular question, and foreign affairs is often such an area, the Court historically has left the elected branches to their own devices. Hearing the Court might opt not to intervene seemed to startle Senator Feingold, but it was a healthy reminder that political actors ought not, in a democracy, complacently expect either ready approbation or rescue from judges (or even from a Supreme Court nominee under pressure).

Signing Statements as a Means of Fostering Interbranch Dialogue

So what devices exist by which the political branches can continue their dialogue - rather than rushing into the federal courts, a move that has significant risks for all?

Ironically, the much-maligned presidential signing statement is one such avenue for dialogue. Rather than a veto -- which ends debate, except in the unlikely event that a supermajority of Congress overrides it -- the signing statement extends the legislative conversation. It sets forth the President's view - to which Congress then can respond.

The McCain law signing statement, for example, allowed the president to express overtly his reservation, while also allowing the legislative limitation on interrogation practice to, in the main, go into effect. This was hardly an insidious executive power play as some of the questioning posed to Judge Alito implied. Indeed, suggesting as much overlooks the utility, long history, and larger purposes of presidential signing statements.

Presidential Signing Statements: Not a Power Grab, But An Effort to "Take Care" to Fully Execute the Law

The use of presidential signing statements can be traced back at least to 1830, when President Andrew Jackson employed the device to give his interpretation of a road appropriation. When Sam Alito and I served together as constitutional legal counsel to Ronald Reagan, the President likewise employed this tradition to improve his overall supervision of the executive branch.

While Congress is the principal lawmaking body, laws do not implement themselves, and much law employs, as a result of compromise, imprecise language. Vague terms create room for interpretation and discretion, and thus, the question becomes: Who will exercise that discretion?

President Reagan felt the initial executive effort to interpret a law was his, since he would be the one held electorally accountable for that law's implementation. Were the President not to give direction as to the law's implementation, Reagan reasoned, the task would fall to a far less accountable and visible federal bureaucrat. In short, Reagan's purpose had nothing to do with wanting to substitute his judgment for that of Congress and the judiciary. His goal was to promote visibility and accountability in areas where interpretation is unavoidable - virtues that conservatives and liberals alike agree are central to our democracy.

As an aside, signing statements have special modern importance as Congress continues the practice of lumping together numerous unrelated provisions in omnibus bills -- often inserting the most controversial provisions in emergency appropriations measures passed at, or after, fiscal deadlines. This practice effectively curtails the President's constitutionally provided veto authority. It also denies the people what Alexander Hamilton referred to as "the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design."

A Key Example: FDR's Signing Statement/Legal Opinion for the Lend-Lease Act

Practically, the president does not always have discretion not to sign legislation containing a constitutional defect. Consider, for example, Franklin Roosevelt's approval of the Lend-Lease Act, which provided vital support to our allies in World War II. Signing the act was necessary. Thus, pointing out its constitutionally problematic aspect was the President's best and only option.

As presented to the President, the Lend-Lease Act contained a provision for its termination by an unconstitutional means. Roosevelt correctly objected to this infringement of the presidential office.

Interestingly, then-Attorney General Robert Jackson, later a justice of the Supreme Court, was more equivocal about the constitutional problem than FDR, but Roosevelt would have none of it. In a rare twist, FDR issued a signing statement that was effectively a legal opinion to his own Attorney General, stating that he "felt constrained to sign the measure [to meet a momentous emergency of great magnitude in world affairs], in spite of the fact that it contained a provision which, in [his] opinion, is clearly unconstitutional."

Roosevelt then directed the Attorney General to put his commentary in the "official files of the Department of Justice" in order to preclude his approval of the Act from being used "as a precedent for any future legislation comprising provisions of a similar nature."

Signing Statements Today: A Sign the Political Branches Need Good-Faith Dialogue

As dramatic as the Lend-Lease case is, it did not pose as great a problem as it might have, because there was little chance that the Congress was going to implement a questionable limitation in the midst of a World War. Then, it was clear that the political branches ought at least to strive to be of one mind vis a vis America's military antagonists, and to send one message.

It can hardly be said that a similar comity exits between the President and Congress in today's war on terror. Though both agree that since 9/11, America has faced grave, imminent harm, highly significant differences in approach remain and need better resolution.

President Bush's signing statement, then, ought to be viewed as an occasion for the political branches to reason this through, rather than engaging in all-or-nothing accusations of bad faith. Possibly, some compromise can be reached. In light of reported torture abuses, the McCain Amendment's limitations on "cruel, inhuman, and degrading treatment" seem generally apt, and with respect to eavesdropping, the FISA structure appears generally sound. But if there are specific needs that justify exceptional practices under either law to secure the nation's safety, the president is right to see them as part of his constitutional duty, and the signing statement reservation ought better be understood as an effort to alert, not scuttle, Congress. The president and Congress have a common enemy, after all, and it is not themselves.

In any event, the dilemma of figuring out how to resolve the present clashes between the political branches, without resorting to the federal courts, certainly supplies no occasion for laying blame upon Alito -- a superbly qualified nominee for the Supreme Court who merely had the intelligence and presence of mind to help outline the difficulty of the issue.

Chief Justice John Marshall started the American judicial enterprise in the famous case of Marbury v. Madison by observing that "an act of the legislature, repugnant to the Constitution, is void." His fellow justice, James Wilson, a principal drafter of the Constitution, likewise wrote that "the President of the United States could . . . refuse to carry into effect an act that violates the Constitution."

Substantively, I suspect Senator Feingold might disagree. But certainly the clarity of these founding expressions is remarkable. But then, neither Marshall nor Wilson is seeking confirmation today.


Douglas W. Kmiec is Chair & Professor of Constitutional Law, Pepperdine University. Professor Kmiec and Judge Alito together helped direct the Office of Legal Counsel for President Reagan.

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