Alito & the Ken Lay Factor

By Robert Parry
January 12, 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 John 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.