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Floyd J. McKay / guest columnist
Expect Alito to support an aggressive presidency
If the Samuel Alito confirmation hearings did nothing more, they alerted Americans to something called the "unitary executive."
That's important, and behind all the rhetoric dealing with abortion, affirmative action and so forth, it is the aggressive advancement of executive power by the Bush administration that really worries most Democrats and a few Republicans in Congress.
It is part and parcel of the steady drumbeat of the national-security state, sacrificing both individual liberties and separation of powers to an endless "war" that allows an absolutist president to govern by secrecy and fear.
The unitary executive theory contends that the president, as chief executive, has sweeping powers to interpret or even ignore laws he disagrees with, particularly in wartime, and it severely limits Congress and even independent regulatory agencies.
To advance the unitary executive during the Reagan administration, a corps of conservative lawyers — Alito was one — utilized "signing statements" in which the president, when signing a bill passed by Congress, declares that there are parts of the law that he basically intends to ignore. The signing statement declares congressional action unconstitutional or unduly intruding on presidential power and instructs the administration to ignore that law or section of law.
Couched in a lot of complex legalese, the signing statement amounts to a line-item veto, something not authorized by law but effectively accomplished by these statements.
In Bush's case, the excuse for this unilateral action has primarily been national security and the war on terror. As in his political speeches, Bush has excused nearly any action on "wartime president" grounds. The latest example is the anti-torture law passed by Congress late last year. After declaring that he and Sen. John McCain are now in agreement against torture, Bush wrote a signing statement that boils down to a commitment to ignore the law if and when he chooses.
The Supreme Court could reverse his decisions, of course, but while the lengthy process of appeals runs its course, the administration obeys the signing statements rather than the laws passed by Congress. Bush serves as legislator and executive, effectively altering the balance of power in Washington.
This is serious stuff, and Americans need to declare time out from their iPods and remote controls to listen to the warnings. Not since Richard Nixon, who also used secrecy and wiretaps, have we seen such a raw grab for power.
Aggressive promotion of the unitary executive through signing statements was rare before Ronald Reagan, who made considerable use of the technique. George H.W. Bush and Bill Clinton used it as well, but disagreements were generally worked out with Congress, and didn't become a major issue.
But George W. Bush has made it a cornerstone of his increasingly aggressive presidency. In his first term, Bush issued 108 signing statements, with 505 constitutional objections, according to Portland State University professor Phillip J. Cooper, an authority on the practice. Bush not only uses it a lot, he uses it in unprecedented depth. When signing the Homeland Security Act in 2002, Bush wrote four-plus pages of statements exempting his administration from the law.
That explains how Bush is the only modern president to avoid a veto in his first term. He subverts Congress with a signing statement that is not subject to congressional override, then administers the law as he darn well pleases.
That seems to be all right with today's supine Republican Congress, with the notable exception of Sen. Arlen Specter, Judiciary Committee chairman, who has voiced concern on several occasions. Perhaps GOP worries might increase with a Democrat in the White House — but by that time Bush's reconstituted Supreme Court may have slammed the door on Congress by increasing presidential power. Thus, the importance of Alito.
Alito in 2000 told a conservative legal organization that he still supports the unitary executive that he helped Reagan advance. The president, he said, has "not just some executive power, but the executive power — the whole thing."
Alito's ascension to the Supreme Court would add a presidential-power advocate to Justices Antonin Scalia and Clarence Thomas, and probably Chief Justice John Roberts. That quartet would need only Justice Anthony Kennedy for a dependable majority.
It is not abortion or affirmative action that will be repealed by the reconstituted court — both will be nibbled to death, not repealed — it is the balance of powers between Congress and the White House that is endangered as the court shifts direction.
In the perpetual state of war and fear driven by the White House, we move closer to authoritarian rule.Floyd J. McKay, a journalism professor emeritus at Western Washington University, is a regular contributor to Times editorial pages. E-mail him at email@example.com
Copyright © 2006 The Seattle Times Company