The Limits of Power: Questions for Alito

The Supreme Court confirmation hearings for Samuel Alito represent the first major battle in an emerging constitutional war over the authority of the President. Revelations that President Bush authorized the National Security Agency to spy on US citizens without court approval have shifted the focus of the hearings from domestic social issues to what distinguished University of Texas law professor Sanford Levinson describes as "the major issue before the Court, and the nation, both now and in the foreseeable future.... [Namely] the ability to stave off ever more aggressive assertions of executive power uncheckable by either Congress or the judiciary."

Both Senate Judiciary Committee chair Arlen Specter and ranking Democrat Patrick Leahy warned Alito they will question him about executive powers. Leahy recently told the Baltimore Sun that many votes in the Senate will be influenced by how directly Alito answers questions about the NSA program and presidential powers.

Alito will certainly be asked about a memo he drafted in 1984 as a Justice Department lawyer in which he wrote that an Attorney General who countenanced wiretapping without a warrant should have "absolute immunity" against suits from the victims. His position is even more disturbing because it involved surveillance not of foreign terrorists but of American peace activists.

Time magazine reported that in 2001 Alito acknowledged that he is a strong proponent of the theory of the "unitary executive" under which all executive branch power is vested in the President--and any incursion on it by Congress should be resisted. This theory has been used by the Bush Administration to justify various extralegal activities, including the infamous torture memos. In Hamdi v. Rumsfeld, Justice Clarence Thomas used the "unitary executive" theory to argue that the Supreme Court's restrictions on the President's unilateral power to lock up US citizens constituted "judicial interference"--a view rejected by the Court's majority.

If we are in a war to preserve the Constitution from executive usurpation, the opening salvos will be the questions the Judiciary Committee puts to Alito. Here are questions in eight key subject areas Samuel Alito should be asked as the hearings unfold:

Domestic Spying

President Bush recently admitted to authorizing the National Security Agency to eavesdrop on Americans' phone calls and e-mails without a court order, despite the 1978 FISA law forbidding domestic wiretapping without a warrant. University of Chicago constitutional law professor Geoffrey Stone observes, "Some legal questions are hard. This one is not. The President's authorizing of NSA to spy on Americans is blatantly unlawful and unconstitutional."

But in his 1984 Justice Department memo, Alito argued that the Attorney General was entitled to absolute immunity from claims concerning illegal domestic wiretapping.

Judge Alito, do you still believe that the Attorney General and other executive branch officials retain absolute immunity and therefore are not subject to the rule of law? Do you believe that the President can defy an express statutory mandate by Congress?

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