More on my concerns with Alito

Overview

Via Laura Rozen at War and Piece, I saw a column in Slate by Dahlia Lithwick entitled "Kiss and Make It Up." Lithwick's concern--like mine--is Alito's potential to put more power in the office of President, but Lithwick focuses mostly on the context of the war on terror. While I agree with her analysis, my concerns go beyond the war on terror. However, the war on terror as discussed by Lithwick is a tangible example of why giving any President--but especially Bush--more power is a bad idea. This overall situation is definitely the proverbial "slippery slope." In other words, once this President is given more power (and less required accountability), where does the process stop? What is to stop the President from then using this precedent to argue for, assert, and then gain approval for even more power in other areas? What is to stop the President from trying to spin other situations into part of the "war on terror" to argue for, assert, and then gain approval for even more power in other areas?

While I especially do not want to see George W. Bush get more power now or ever, this issue goes beyond Bush and partisanship. As I said in A quick note on the Alito hearings,

...just ask yourselves whether you would want, oh, let's say...Hillary Clinton being President and having that kind of power. Aside from the fact that I don't want a Hillary Presidency, I don't want any President to be above the law.

Baseball provides a popular analogy.

In the comments to A quick note on the Alito hearings, Luth, my political (as opposed to musical) cohort, presented a baseball umpire analogy to question why there has been such a fuss over some of Alito's allegedly evasive answers [which I maintain is evidence that Luth is not a knee-jerk lefty activist ;-) ]. I countered with the following:

There is no problem with an umpire saying "the game is afoot and I'll have to apply the rules to it," AS LONG AS HE DOESN"T TRY TO CHANGE THE RULES. The problem with Alito is that it seems that he favors changing the most basic rules of our government to give the President more power. And if he gets on the Supreme Court, he will be in a position to change the rules.

Lithwick also used a baseball umpire analogy, but in a slightly different way. Her point is that previous laws and precedents do not address the circumstances of the war on terror:

In a new era, fighting a new kind of war unlimited by time or place, with guidance only from World War II- and Civil War-era cases and sloppily crafted statutes, judicial promises of modesty and humility offer little comfort. You can't call balls and strikes until a strike zone has been invented. It will soon fall to the high court to determine the contours of executive authority, and the justices who will be on that court will have precious little to constrain them. Don't worry, they'll still call whatever they're doing "strict construction." But the only thing they may be strictly construing is the president's will.

(emphasis added).

Both interpretations of the umpire analogy are valid.

Lithwick has a point, but I feel that I do also. Lithwick's point seems to be that the relative roles of the Legislative and Executive branches have not been defined in the context of the open-ended "war" that is not like any other war will be determined by the Supreme Court. While I agree, the Supreme Court will not simply be making rules where none existed before. As I explained in the discussion of the legislative process and statutory construction by the Courts in Part 6 of a series on the McCain amendment, there are longstanding principles and rules which would have to be changed in order to give a President the authority to disregard acts of Congress which had received the President's signature or survived a veto. Part of any process which gives a President more power will necessarily involve statutory construction, and that means that the Supreme Court will have to change the rules. Alito's position on signing statements indicates to me that changing the rules of statutory construction is something he will attempt. The primary reason I am against such change--and thus against Alito--is that such change will, in my opinion, clearly violate the Constitution by giving the President more power over the legislative process (see Part 6 on the McCain amendment).

Also, I feel that statutory construction will be used as a foundation for/stepping stone to rulings which actually change basic Constitutional law. Why? Saying that the Supremes are simply applying rules to interpret statutes is far less controversial and easier to sell to the public than immediate changes to core Constitutional law.

Still, Lithwick has a very good point, because the Constitutional interpretation of the President's powers in general and relative to the Congress is the sole responsibility of the Supreme Court. The Supreme Court ultimately determines that issue, and it does not in any way have to look to or rely upon or give deference to Congress in making that determination. Lithwick concisely states her concerns as follows:

But all that nice jurisprudential wallpaper simply falls away where it really matters: the constitutional limits of the war on terror. When it comes to the reach of the president's authority to pursue this war with a warrantless wiretap in one hand and a cattle prod in the other, there is almost no statutory authority or court precedent. Judges, specifically the justices of the Supreme Court, will in the end be making up the law more or less as they go.

I have yet to see anything from Alito to indicate he considers that the possibility of giving a President too much power even exists. I would welcome some evidence to the contrary (which means feel free to cite some), but until I see it, there is no way I can support the confirmation of Alito.