Alito VS The Constitution

While I think that Alito will be confirmed the prospect frightens me. Not because of Roe V Wade but because of the issue of executive power. Jonathan Nichols makes the case against the philosophy of Sam Alito in Alito's nod to executive power looms as dangerous.

No member of the Senate who takes seriously the oath they have sworn to defend the Constitution will vote to confirm judicial activist Samuel Alito's nomination to serve on the U.S. Supreme Court.
To a greater extent than any nominee for the high court in recent memory, and very possibly in the long history of the country, Alito has placed himself clearly and unequivocally at odds with the original intent of the authors of the Constitution and the incontrovertible language of the document.

The Reagan administration rejected Alito's philosophy on executive power but it's just what the doctor ordered for the Cheney/Bush regime.

Alito is consistently on record as favoring steps by the White House to in his words "increase the power of the executive to shape the law." Twenty years ago, as a member of the Reagan administration, Alito was in the forefront of efforts to legitimize executive power grabs designed to allow presidents to take dramatic actions, sometimes in secret, without the advice and consent of Congress.

In a 1986 draft memo that advised Reagan and his aides on how to ensure that their interpretations of official actions trumped those of the legislative branch, Alito acknowledged that his approach would put the White House at odds with the Congress. "The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction," Alito argued. "In addition, and perhaps most important, Congress is likely to resent the fact that the president will get in the last word on questions of interpretation."

The Reagan administration never fully embraced Alito's proposals, but the Bush administration has. And Alito has been cheering on the process of executive power enhancement, telling the Federalist Society in an address five years ago, "The president has not just some executive powers, but the executive power the whole thing."

The "whole thing" approach adopted by George Bush and Dick Cheney has placed the current administration on a collision course with the Constitution. And it will be the Supreme Court that must sort through the wreckage.

With the high court widely expected to rule on multiple cases involving questions about presidential war-making, the War Powers Act and domestic manifestations of the Bush administration's so-called "war on terror," the position of every justice on issues of executive authority becomes more significant. And potential changes in the court that might make it more deferent to an executive branch that appears to be bent on eliminating all checks and balances as the confirmation of Alito would surely do are, necessarily, the most consequential of matters.

Anyone who has actually read the constitution and how the founding fathers felt about executive power realize that Alito's views are in conflict with them.

The authors of the Constitution were absolutely determined to prevent presidents from making war without the consent of Congress and from abusing a state of war to curtail domestic liberties.

And once again we have to remember who Alito is replacing.

Much has been done to undermine the system of checks and balances that the founders wrote into the Constitution to control against executive excess. But, as recently as 2004, the court reaffirmed the basic principle that the president must operate within strict constraints in a time of war. Ruling that the executive branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections, the court rebuked the Bush administration's actions with an opinion that declared, "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

The author of that statement was Sandra Day O'Connor, the retiring justice whom Alito has been nominated to replace.

Justice O'Connor, who could hardly be referred to as a strict constructionist, was not merely expressing an opinion with her defense of checks and balances on the executive. She was affirming the Constitution, and she was doing so in a manner that respected the intentions of the founders something Samuel Alito's record suggests that he is entirely incapable of doing.

So I fear that little can be done to stop Alito and the result will be a tyrant and a King.