January 17, 2006,
Dana Milbank wrote an article for the "Style" section of Monday's Washington Post about how frequently certain phrases were used during the Alito hearings. Readers don't necessarily expect straight news reporting in that section. But if the writer isn't playing it straight, he ought to signal the fact. Milbank doesn't. Check out the definition Milbank provides in this sentence: "'Above the law' came up a dozen times, and 'the unitary executive' an extreme view of presidential power 14 times." Memo to Milbank: Ted Kennedy's view of what constitutes extremism is not the objective truth.
But everywhere you look, debatable or false claims about Alito are being passed off as simple statements of fact.
Discussing the president's policies on torture, the New York Times editorialized on Sunday, "Both of the offensive theories at work here that a president's intent in signing a bill trumps the intent of Congress in writing it, and that a president can claim power without restriction or supervision by the courts or Congress are pet theories of Judge Samuel Alito, the man Mr. Bush chose to tilt the Supreme Court to the right." We rightly cut editorialists some slack when they characterize the views they are disputing. We recognize that some of the editorializing may make its way into the characterization, as when the characterization is hyperbolic.
But the Times's statement isn't hyperbolic. It's just false. If the view that the president's intent "trumps" congressional intent was a pet theory of Alito, he would have had to advance it somewhere. There's no evidence he ever has. In 1986, Alito wrote that the president's understanding of legislation should be "just as important as that of Congress" not more important. Nor is it true that Alito has said that "a president can claim power without restriction or supervision by the courts or Congress." He explicitly denied holding that view during the hearings. If the Times wants to condemn Alito, it should do so without making things up.
Andrew Sullivan has written an essay in Time about the president's statement in signing the McCain amendment on torture. Sullivan, at least, quotes Alito's memo accurately (the president's intent should be "just as important"). He then writes, "That is, of course, a very strange idea which is why, until then, signing statements had been sporadic and rare. Courts have always looked solely to congressional debates in interpreting laws Congress has passed." (I love that "of course": Who could doubt that Alito's ideas about the interpretation of the law are stranger than Sullivan's?) But Sullivan's statement is false. Courts have never looked "solely" at congressional debates in interpreting laws. They have looked at the text of the laws, at dictionaries extant at the time those laws were adopted, at treatments of the law in the popular press of the time, and many other sources of information. The deference that judges should give congressional debates (and, more to the point, committee reports) in interpreting laws is, in truth, a heavily debated topic at the Supreme Court.
When signing the McCain amendment, Bush issued a statement that Sullivan quotes: "The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." The first thing to note about this statement is that, however pointed the context in which it was made, it is very nearly a truism. In executing any law, the president should seek to construe it so that it is consistent with the Constitution. It does not, in itself, include any claim about what "the constitutional authority of the President to supervise the unitary executive branch" is, or what the "constitutional limitations on the judicial power" are.
There are two dangers here. One is that the president will, acting on a false understanding of that authority and those limitations, twist the law or even effectively disregard it. If that happens, however, how much will the signing statement be to blame for it? Would the critics be happier if the president twisted or disregarded the law without making a statement? The second danger is that the courts will give too much deference to the president's views and thereby twist the law themselves. Signing statements, however, have no magical power to compel judges to reach this result; and the president could just as easily make his case to the courts in legal briefs filed by the Justice Department.
Sullivan, rather excitably, writes: "[P]ut a war President's power together with the new use of signing statements, and Executive clout has been put on steroids. . . . Forget the imperial presidency. This is more like a monarchical one." (An aside: Does Sullivan think that "monarchical" is stronger than "imperial"? Do his editors?)
It's perfectly reasonable to dispute Bush's view of his own authority. But until the critics have better evidence than they have to date produced, they should leave Samuel Alito out of their quarrel.
Ramesh Ponnuru, an NR senior editor is at work on a book about the sanctity of life and American politics.