Friday, January 13, 2006

The Alito Dog and Pony Show

I hope that no one has been disappointed by my silence during these televised grandstanding sessions involving Judge Alito’s nomination to be the next Supreme Court justice, but to be perfectly honest I haven’t had anything to say that was worthy of taking the time to tap the keyboard. Upon further reflection, however, I do think a couple of interesting things came out during the general bloviating, but to be honest they are esoteric and, thus, will likely disappoint our more partisan readers.

On the political side, I will only say that I was utterly disappointed with the conduct of almost everyone who was sitting on the dais. Democrats were, by and large, rude, obnoxious, condescending, and stupid. The Republicans, on the other hand, demonstrated, for the most part, a sort of junior high school anti-intellectualism by asking questions of Judge Alito that, in my opinion, were the legal equivalent of “will the sun rise in the east and set in the west tomorrow?” I’m not sure that anyone has much to be proud of if you were just reviewing the performance of the Senators. I thought Alito conducted himself quite well and maintained attention and composure throughout, which I am sure, is more than could reasonably be expected by any normal human being. As such, as I said when he was nominated, Alito will be confirmed by the end of the month with little to no real meaningful opposition.

That said, there were two issues that arouse during the week that caught my attention, executive signing statements and “congressional standing” to defend the constitutionality of statutes. I’ll reserve my comments to these subjects.

Click Read More to read my arcane legal musings.

The issue of executive signing statements caught my attention mostly because it is the first time that I have heard anyone associated with the Congress admit that they even noticed these things, much less exhibited concern about what they actually have said or mean. President Bush has since he took office in 2001 been, by far, the most prolific user of the executive signing statement in Presidential history. While he is by no means the first to utilize this tool, he has far exceeded President Reagan, who reinvigorated the practice, in both scope and effect. By last count (done by several of my colleagues) this President has asserted that he will not execute or reinterpret as favorable to the executive branch over 700 provisions. Now, it is true, that the overwhelming majority of these have been information requirements to the Congress, such as calls for reports, or studies by executive agencies. For example, the Intelligent Reform and Terrorism Prevention Act of 2004 (Pub. L. No. 108-458), contained literally hundreds of these types of provisions of which few, if any, have been complied with at last check.

Most recently, in the signing statement of the 2005 Defense Appropriations Act, which contained the infamous “McCain Amendment” on torture as well as the Graham-Levin language with respect to the writ of habeas corpus, the President indicated that his interpretation of that language was far different than that of what either the statute said or what the Congress intended.

So what is the point you ask? Well there are several, and I know that I’ve rambled on about this before, but there are significant constitutional and institutional interests at stake here. The first is the “line-item veto” issue, and the second is what if any impact should these statements have if and when these issues come before a court? With respect to the line-item veto, this we already know is unconstitutional. In Clinton v. New York, the Supreme Court held that such a power cannot be granted to the President under the Constitution because it violates Article I, which requires that all laws be passed by a majority of both houses and signed by the President. The Constitution does provide the President with a remedy if he thinks the Congress has acted unconstitutionally, namely, the veto, but he must veto the entire legislation, not simply carve out that which he doesn’t agree with. Many have argued, myself included, that this practice by the President has saved him from having to veto otherwise politically popular or necessary legislation. The Defense bill is the perfect example. There is no doubt that the President sees the McCain Amendment as arguably encroaching on the executive branch’s war powers, but rather than veto the bill, which also provides funding for the DoD and troops overseas, he signed the bill into law and offers an interpretation of the statute, which is the functional equivalent of sticking his thumb in the eye of Congress. In my opinion, the exercise of this kind of power is more dangerous than vetoing legislation. The President is entitled to his own view of the constitutionality of statutes, just as Congress is, but the Constitution provides a specific way for the branches to deal with there disagreement, the President can veto and if Congress can get 2/3 support from both houses it can override the President’s veto. Clean, simple, and Constitutional. The President’s use of the signing statement in this manner is arguably unconstitutional and should be stopped.

But what real effect can these signing statements have on a court interpretation of the statute? Are they to be considered part of the “legislative history?” Do they deserve any kind of deference like administrative decisions of the executive branch under Chevron v. Natural Defense Resource Council or United States v. Mead? These are the kinds of questions that I think the Senators were trying to get at, albeit rather poorly and erratically. For the most part they don’t have any good solid answers, and I think Alito did just fine in answering them. For a Justice like Justice Scalia, it seems to me that these signing statements would carry no weight at all, as they are the equivalent of legislative history and he’s infamous for his rejection of legislative history’s consideration when interpreting statutes. Alito, however, on several occasions indicated that he is not in the Scalia camp and has in the past relied on legislative history when construing statutes. So it remains an open question, what effect do the signing statements have? One thing to keep in mind is that to the extent that signing statements are legislative history they are technically “post enactment” legislative history, which generally receives the least amount of attention by courts and statutory construction treatises. As to the question of deference, I’m of the opinion that they should not receive administrative deference as they carry no more weight than a committee report or conference report, which reflect the Congress’s views with respect to purpose, intent, and constitutionality of the statute. To give such pronouncements deference would be to dramatically increase the power of the President in a manner which I, for one, do not think the framers intended.

Last but not least there was an issue with respect to congressional standing that was introduced by Senator Specter during one of his rounds of questioning. Specifically, Senator Specter stated that:

We're speaking not only to you, Judge Alito, but to the court. The court … ought
to know what the Congress thinks about making us schoolchildren or challenging
our method of reasoning. We're considering legislation which would give Congress
standing to go into the Supreme Court to uphold our cases. Right now the
[S]olicitor [G]eneral does that. He's in the executive branch. We don't want to
derogate the [S]olicitor [G]eneral in your presence, Judge Alito, but the
thinking that we've had was to speak about your decisions and the court's
decisions on the floor of the Senate. Nobody pays attention to that. Maybe we
would try to come in as amicus. Why do that? We have the power to grant
standing. We could grant standing to ourselves and come into court and fight to
uphold constitutionality.

An interesting statement to be sure, but I’m not entirely convinced that such a move would be a constitutional exercise of congressional power. In fact, I’m almost of the opinion that such a statute would be unconstitutional. The case closest on point appears to be Raines v. Byrd, which also dealt with the line-item veto. In Raines, the Court was presented with an argument that the line-item veto was unconstitutional because it diluted the voting power of Congressmen and Senators. The Court held that the Senators challenging the law did not have standing to do so, and dismissed the line-item veto portion as not yet ripe for consideration. Thus, based solely on Raines, it would appear that Congressmen and Senators do not have standing to challenge the constitutionality of law or actions by other governmental officials.

I, however, don’t think Ranies is the whole story. If one follows the Court’s line of standing cases, from Cleboure to Lujan I think you get the picture that standing is a constitutional as well as prudential issue. Constitutionally, the doctrine of standing arises from the “cases and controversy” language in Article III. Only those persons that have a genuine case or controversy as defined by the Constitution can be heard in federal court. Thus, while Congress may statutorily create jurisdiction or causes of action that a Court must adjudicate it cannot amend the constitution to give standing to persons that do not meet the Constitutional requirement. I think in part that Senator Specter was confusing the concepts of jurisdiction and standing in making his claim. Besides, he is correct to point out that whenever an act of Congress is challenged in court the Department of Justice defends the statute. At the Supreme Court this function is carried out by the Solicitor General, also technically a part of the Justice Department. Congressmen and Senators are free to file, and have often filed, amicus or friend of the court briefs that express their individual views on constitutionality for the Court to consider. I fail to see how this is insufficient, unless Senator Specter and others feel that the SG’s office is not truly representing the institutional interest of Congress in certain cases. While that may in fact be true, I’m not sure what can be done short of reassigning the right of defending constitutionality to the House and Senate General Counsel, but that would effectively eliminate the SG’s office and would dramatically alter the House and Senate Counsels office functions and duties in a way that might not be in the institutions best interest. Currently those offices play an important role with respect to legal advice and committee action. If they are put in the position of having to defend in court the actions of Congress on a regular basis they would, it seems to be, jeopardize the type of advice they give to Members and Committees as such advice would become relevant in a proceeding challenging the acts of Congress.

At this point I’m admittedly rambling, but I think I have done my duty and raised issues that I thought were interesting from the Alito hearings. As I said, there is little doubt that he will become the next Justice, so I think its best eagerly await his written opinions from the Court before attempting to offer opinions on his jurisprudence.


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