The new front in the real war

Not that I expect it to make much difference, but I sure hope somebody on the Judiciary Committee presses Alito on this travesty:

As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch.

In the 1980s, the Reagan administration, like other White Houses before and after, chafed at the reality that Congress's reach on the meaning of laws extends beyond the words of statutes passed on Capitol Hill. Judges may turn to the trail of statements lawmakers left behind in the Congressional Record when trying to glean the intent behind a law. The White House left no comparable record.

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.
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President Bush has been especially fond of them, issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon. Many of Bush's statements rejected provisions in bills that the White House regarded as interfering with its powers in national security, intelligence policy and law enforcement, Cooper wrote recently in the academic journal Presidential Studies Quarterly.

The Bush administration "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress," Cooper wrote in the September issue. "This tour d' force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all."

I went to law school. I took a course specifically about analyzing statutory law. We talked at length about "legislative intent," but I don't recall spending any time discussing executive intent. (We did talk about the scope of administrative power to interpret in the writing of regulations that implement the law, but that power is unambiguously secondary to Congressional intent.) Laws are written and passed by Congress, and the President's decision tree when a bill hits his desk is binary: sign or veto. Beyond that, what he thinks the law means simply does not figure into its interpretation when somebody challenges the law in court.

That is how it has worked since Justice Marshall penned Marbury v. Madison more than 200 years ago: Congress makes 'em, courts interpret 'em (with some deference to congressional intent), and the executive enforces 'em. The NSA domestic spying scandal exposes the overthrow of the judiciary by this Administration. Bush's naked attempt to eviscerate the ban on torture is a takeover of the legislative function. Nobody -- not even Nixon -- had the stones to assert the right to usurp both of those powers to the executive until now.

What Bush wants, and Alito is happy to deliver, is an absolute monarchy -- exactly what the Founding Fathers fought hardest against. What these duplicitous evil men do sub rosa is completely at odds with the form of government Jefferson, Madison and Hamilton created to prevent such accumulation of power. And these traitors to the very causes they espouse are happy to write legal fiction on a truly astounding scale in order to get it.

This mindboggling sophistry is part of the real war now being fought: Caesar is marching on Rome, and the republic is under seige. If Alito is confirmed, the emperor-in-waiting will have a another monarchist dismantling the "least political branch" from within, and the coffin of our democracy will want for one less nail.