Alito and the Ken Lay Factor

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FOCUS | Robert Parry: Alito and the Ken Lay Factor

Thu, 12 Jan 2006 06:29:51 -0800

 

 

 

http://www.truthout.org/docs_2006/011206Z.shtml

 

Alito and the Ken Lay Factor

By Robert Parry

Consortium News

 

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. "

 

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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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