[Mb-civic] Alito and the Ken Lay Factor

[ean at sbcglobal.net]

Alito and the Ken Lay Factor
    By Robert Parry
    Consortium News
http://www.truthout.org/docs_2006/011206Z.shtml
    Thursday 12 January 2006

    The "unitary" theory of presidential power sounds too wonkish for 
Americans to care about, but the confirmation of Samuel Alito to the 
U.S. Supreme Court could push this radical notion of almost unlimited 
Executive authority close to becoming a reality.

    Justice Alito, as a longtime advocate of the theory, would put the 
Court's right-wing faction on the verge of having a majority committed 
to embracing this constitutional argument that would strip regulatory 
agencies, such as the Securities and Exchange Commission and the 
Federal Communications Commission, of their independence.

    If that happens, George W. Bush and his successors would have 
the power to instruct these agencies what to do on regulations and 
enforcement, opening up new opportunities to punish enemies and 
reward friends. The "unitary" theory asserts that all executive authority 
must be in the President's hands, without exception.

    The Supreme Court's embrace of the "unitary executive" would 
sound the death knell for independent regulatory agencies as they 
have existed since the Great Depression, when they were structured 
with shared control between the Congress and the President. Putting 
the agencies under the President's thumb would tip the balance of 
Washington power to the White House and invite abuses by letting the 
Executive turn on and off enforcement investigations.

    For instance, if the "unitary executive" had existed in 2001, Bush 
might have been tempted to halt the SEC accounting investigation that 
spelled doom for Enron Corp. and his major financial backer, Enron 
Chairman Kenneth Lay. As it was, the relative independence of the 
SEC ensured that the accounting probe went forward and the 
fraudulent schemes propping up the Houston-based company were 
exposed.

    Direct presidential control of the FCC would give Bush and his 
subordinates the power to grant and revoke broadcast licenses without 
the constraints that frustrated Richard Nixon's attempts to punish the 
Washington Post company for its Watergate reporting. Bush also 
would be free to order communication policies bent in ways that would 
help his media allies and undermine his critics.

    The Federal Election Commission, which oversees political 
finances, is another agency that would fall under presidential control. 
Hypothetically at least, influence-peddlers like Jack Abramoff who 
spread campaign contributions to corrupted lawmakers could get a 
measure of protection if the President didn't want the agency to pursue 
their violations.

    War Powers

    The "unitary executive" applies as well to the President's authority to 
interpret laws as he sees fit, especially in areas of national security 
where right-wing lawyers argue that the commander-in-chief powers 
are "plenary," which means "absolute, unqualified."

    So, when Alito assured the Senate Judiciary Committee that no one, 
not even the President, is "above the law," that palliative answer had 
little meaning since under the "unitary" theory favored by Alito the 
President effectively is the law.

    Since his days as a lawyer in Ronald Reagan's White House, Alito 
has pushed this theory. At a Federalist Society symposium in 2001, 
Alito recalled that when he was in the Office of Legal Counsel in 
Ronald Reagan's White House, "we were strong proponents of the 
theory of the unitary executive, that all federal executive power is 
vested by the Constitution in the President."

    In 1986, Alito advocated the use of "interpretive signing statements" 
by presidents to counter the judiciary's traditional reliance on 
congressional intent in assessing the meaning of federal law.

    Under Bush, "signing statements" have become commonplace and 
amount to his rejection of legal restrictions especially as they bear on 
presidential powers. A search of the White House Internet site finds 
101 entries for the word "unitary" in Bush's statements and other 
official references.

    In December 2005, for instance, Bush cited the "unitary" powers of 
the Presidency when he signed the McCain amendment, which 
prohibited cruel, inhuman and degrading treatment of detainees in U.S. 
custody. In a "signing statement," Bush reserved the right to bypass 
the law by invoking his commander-in-chief powers.

    "The Executive Branch shall construe [the torture ban] 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 
signing statement read.

    In other words, since Bush considers his commander-in-chief 
authority boundless, he can choose to waive the torture ban whenever 
he wants, much as he ordered wiretaps of American citizens without 
getting a court warrant as is required by the Foreign Intelligence 
Surveillance Act.

    "The signing statement is saying 'I will only comply with this [torture 
ban] law when I want to, and if something arises in the war on 
terrorism where I think it's important to torture or engage in cruel, 
inhuman, and degrading conduct, I have the authority to do so and 
nothing in this law is going to stop me,'" said New York University law 
professor David Golove.

    Founding Fathers

    Alito has argued that a powerful executive is what the Founding 
Fathers always intended. In a speech in 2000, he said that when the 
U.S. Constitution was drafted in 1787, the framers "saw the unitary 
executive as necessary to balance the huge power of the legislature 
and the factions that may gain control of it."

    Scholars, however, have disputed Alito's historical argument by 
noting that the framers worried most about excessive executive 
powers, like those of a king, and devised a complex system of checks 
and balances with the Legislature in the preeminent position to limit the 
President's powers. [WSJ, Jan. 5, 2006]

    Yet, with Alito seemingly advancing toward confirmation, the next 
question may be how many other justices on the nine-member 
Supreme Court agree with him about the "unitary executive."

    For one, Chief Justice Roberts, Bush's other appointee to the 
Supreme Court, has been a longtime supporter of broad presidential 
powers.

    During the Reagan administration in 1983, Roberts said it was time 
to "reconsider the existence" of independent regulatory agencies, such 
as the Federal Communications Commission and the Federal Trade 
Commission, and to "take action to bring them back within the 
Executive Branch."

    Roberts called these agencies a "constitutional anomaly," which 
should be rectified by putting them under direct presidential control.

    Roberts's deference to presidential power has been a strand that 
has run through his entire career - as special assistant to Reagan's 
attorney general, as a legal strategist for Reagan's White House 
counsel, as a top deputy to George H.W. Bush's solicitor general 
Kenneth W. Starr, and as a federal appeals court judge accepting 
George W. Bush's right to deny due-process rights to anyone deemed 
an "enemy combatant."

    Another "unitary executive" vote is likely to come from Justice 
Antonin Scalia, who is considered the court's most scholarly right-wing 
member. He has been associated with the drive to expand presidential 
powers since the mid-1970s when he headed President Gerald Ford's 
Office of Legal Counsel and served as assistant attorney general.

    Justice Clarence Thomas would appear to be a reliable fourth vote, 
having cited the theory of the "unitary executive" in arguing in 2004 that 
the Supreme Court had no right to intervene in granting legal 
protections to detainees at Guantanamo Bay.

    So, how far the court's right wing can go in implementing its concept 
of the "unitary executive" may depend on how Justice Anthony 
Kennedy votes. Kennedy, who drafted the opinion in the Bush v. Gore 
case that handed the White House to George W. Bush, is considered 
a less ideological conservative than Scalia, Thomas, Roberts and Alito.

    But it is unclear whether Kennedy has the strength of will to resist 
the rip tide that is pulling the U.S. Supreme Court toward a historic 
surrender of political power to the "unitary executive."

    --------

    Robert Parry broke many of the Iran-Contra stories in the 1980s for 
the Associated Press and Newsweek. His latest book, Secrecy & 
Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be 
ordered at secrecyandprivilege.com. It's also available at 
Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the 
Press & 'Project Truth.'


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