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Date: January 11, 2006

Senator: Leahy

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 SPECTER: The hearings will resume.

And, turning to distinguished ranking member, Senator Leahy, for 20 minutes.

LEAHY: Thank you, Mr. Chairman.

And, Judge Alito, welcome back. If the past is any prologue, you probably don't have more than another day or so of this to go through.

But I am concerned -- and I want to state this our right outright -- concerned that you may be retreating from part of your record. And I think that some of the answers, and I have expressed this concern. I mentioned it to the chairman. I'm concerned some of your answers were inconsistent with past statements.

All of us want to know your legal and constitutional philosophy. So, let's go back to the questions I was asking yesterday about checking presidential power.

And we spoke about Justice Jackson's opinion in Youngstown. Justice Jackson, as you know, is a hero of mine. And I point often to the Youngstown case.

But when Congress acts to restrain the president's power, as we did with the anti-torture statutes and the Foreign Intelligence Surveillance Act, I believe the president's power than is at its lowest ebb.

You seemed to be saying yesterday that fell into the second category of Jackson, the "twilight zone." Actually, I believe you were mistaken on that. Justice Jackson spoke of the "twilight zone" area, or as he said, "a zone of twilight," where Congress had not acted.

So, let's go to a landmark decision, Hamdi and Justice O'Connor's decision. That's whether there was due process required, so a U.S. citizen can have a meaningful chance to challenge his detention by the government.

Now, Justice O'Connor wrote that the president does not have a blank check even in time of war. And yesterday, you told Senator Specter that you agreed with Justice O'Connor's general statement.

A very different view was in the dissent. Justice Thomas would have upheld the extreme claims for this all-powerful and essentially unchecked president.

LEAHY: He argued the government's power could not be balanced away by the court and there is no occasion to balance the competing interests.

Which one is right, Justice O'Connor or Justice Thomas? They're quite a bit different.

ALITO: Justice O'Connor wrote the opinion of the court.

The first question that she addressed in Hamdi was whether it was lawful to detain Hamdi, and it was a statutory question, and it was a question whether it was -- whether he was being detained in violation of what is often referred to as the anti-detention statute, which was passed to prevent a repetition of the Japanese internment that occurred during World War II. And she concluded that the authorization for the use of military force constituted an authorization for detention.

And then she went on to the issue of the constitutional procedures that would have to be followed before someone could be detained. And she looked to standard procedural due process law in this area and identified some of the requirements that would have to be followed before someone could be detained.

And now issues have arisen about the identity of the tribunal that is to make a determination about detaining people who are taken into custody during the war on terrorism.

And that's one of the issues that's working its way through the court system.

LEAHY: No, I'm not talking about those things that are working, but just on Hamdi -- that has been decided -- would you say that Justice O'Connor basically applied the Jackson test, not the twilight zone test but the test of where the president's power is at its lowest ebb?

ALITO: In addressing the statutory question, I don't think she had any need to get into Justice Jackson's framework as well.

LEAHY: So would you say it would be consistent with what Justice Jackson said?

ALITO: I think it's certainly consistent with what Justice Jackson said...

LEAHY: Which decision do you personally agree with, hers or the dissent by Justice Thomas?

ALITO: I think that the war powers are divided between the executive branch and the Congress. I think that's a starting point to look at in this area.

The president is the commander in chief, and he has authority in the area of foreign affairs and is recognized in Supreme Court decisions as the sole organ in the country for conducting foreign affairs.

LEAHY: But you're not going to say which of the two decisions you...

ALITO: Well, I'm trying to explain my understanding of the division of authority in this area. And I think that it's divided between the executive and the Congress.

I certainly don't think that the president has a blank check in time of war. He does have the responsibility as the commander in chief, which is an awesome responsibility.

LEAHY: We all understand that and appreciate that. My understanding, listening to Chief Justice Roberts when he was here same way you are, that he felt that Justice O'Connor's decision most clearly tracked the Jackson standard in Youngstown.

But let's go -- I want to get more into this unitary executive theory, because I really had questions listening to you yesterday. You've said as recently as five years ago that you believe the unitary executive theory best captures the constitutional role of presidential power. You were a sitting judge when you said that.

And do you still adhere to that legal and constitutional view that you were expressing five years ago?

ALITO: I think that the considerations that inform the theory of the unitary executive are still important in determining and deciding separation of powers issues that arise in this area.

ALITO: Of course, when questions come up involving the power of removal, which was the particular power that I was talking about in the talk that you are referring to, those are now governed by a line of precedent from Myers, going through Humphrey's executor and Wiener and Morrison, where the court held 8-1 that the removal restrictions that were placed on an independent counsel under the Independent Counsel Act did not violate separation of powers principles.

So those would be applied. Those would be the governing precedents on the question of removal.

But my point in the talk was that the considerations that underlie this theory are relevant; should inform decision-making in the area, going beyond the narrow question of removal.

LEAHY: But in the past, you criticized Morrison. Are you saying now that you're comfortable with Morrison? Do you accept it?

ALITO: Morrison is a settled precedent -- is a precedent of the court. It was an 8-1 decision. It's entitled to respect under stare decisis. It concerns the Independent Counsel Act, which no longer is in force.

LEAHY: So do you hold today that the independent counsel statute was beyond the congressional authority to authorize?

ALITO: No, I don't think that was ever my view.

LEAHY: (inaudible) All right.

Under the theory of unitary executive that you've espoused, what weight and relevance should the Supreme Court give to a presidential signing statement?

I ask that because these are real issues. I mean, we passed the McCain-Warner et al. statute against torture, when the president did a separate -- after he signed it into law -- he didn't veto it -- he had the right and, of course, the ability to veto it. He didn't veto it. He signed it into law and then he wrote a sidebar or a signing statement basically saying that it will not apply to him or those acting under his orders if he doesn't want it to.

Under a unitary theory of government, one could argue that he has an absolute right to ignore a law that the Congress has written. What kind of weight do you think should be given to signing statements?

ALITO: I don't see any connection between the concept of a unitary executive and the weight that should be given to signing statements in interpreting statutes. I view those as entirely separate questions.

The question of the unitary executive, as I was explaining yesterday, does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive. So those are entirely different questions.

The scope of executive power gets into the question of inherent executive power.

LEAHY: Let me go into that little bit. Because back in the days when I was prosecutor, I was very shocked what happened on the Saturday Night Massacre.

LEAHY: The president orders certain things to be done. The attorney general says, "No, I won't do it." He fires him.

The deputy attorney general -- he said, "OK, you do it." And the deputy attorney general wouldn't, saying it would violate the law. Fires him.

They keep on going down. Finally, they find one person, a person you have praised -- Robert Bork -- who says, "Fine, I'll fire him. I'll do what the president says."

You have criticized Congress for allowing these independent agencies to refine and apply policies passed by Congress. You said that insofar as the president is the chief executive, he should follow their policies, not Congress.

So let's take one for example.

The Federal Election Commission, independent agency. They make policy. Suppose the president, whoever was the president, didn't like the fact they were investigating somebody who had contributed to him. Could he order them to stop that investigation?

ALITO: Senator, I don't think I've ever said that -- I don't think I've ever challenged the constitutionality of independent agencies.

My understanding...

LEAHY: No, but you said -- I want to make sure I -- my understanding is you've chastised Congress for giving so much power to them when the power should be in the president or in the executive.

ALITO: Senator, I don't think I've never said that, either.

I said that I thought that there was merit to the theory of the unitary executive. And I tried to explain how I thought that should play out in the post-Morrison world.

Accepting Morrison as the Supreme Court's latest decision, in a resounding 8-1 decision on the issue of removal, how should the concept of the unitary executive play out in the post-Morrison world?

ALITO: On the issue of removal, my understanding of where the law stands now is that Myers established that there are certain officers of the executive branch whom the president has the authority to remove as he sees fit.

LEAHY: Of course, he could fire his whole Cabinet today if he wanted to. We all accept that.

ALITO: Well, that was the issue that was presented by the Tenure in Office Act that led to the impeachment of the first President Johnson. And in Myers, Chief Justice Taft, although the act -- that controversy was long passed -- Chief Justice Taft opined that the Tenure in Office Act had been unconstitutional.

LEAHY: But let's not go off the subject of these independent agencies that we have set up, using the example of the FEC, the Federal Election Commission. Could the president, if he didn't like somebody they were investigating, a contributor or something, could he order them to stop?

ALITO: What Morrison says is that Congress can place restrictions on the removal of inferior officers, provided that those removal restrictions don't interfere with the president's exercise of executive authority.

So they adopted a functional approach. And that was the court's latest word on this question.

They looked back to Humphrey's Executor and Wiener, which had talked about categories, and they -- categories of quasi-judicial and quasi-legislative officers -- and they reformulated this as a functional approach. And that's the approach that would now be applied.

LEAHY: Do you believe the president has the power to curtail investigations, for example, by the Department of Justice? The Department of Justice is under him.

ALITO: I don't think the president is above the law.

ALITO: And the president is the head of the executive branch. And I've explained my understanding of the removal restrictions that can and cannot be placed on officers of the executive branch.

LEAHY: But could he order them to stop an investigation?

ALITO: Well, you would have to look at the facts of the case and the particular officer that we're talking about.

LEAHY: Could he order the FBI to conduct surveillance in a way not authorized by statute?

ALITO: The president is subject to constitutional restrictions and he cannot lawfully direct the FBI or anybody in the Justice Department or anybody else in the executive branch to do anything that violates the Constitution.

LEAHY: I'm speaking now of statute. Could he order our intelligence agencies to do something that was specifically prohibited by statute?

ALITO: Well, my answer to that is the same thing. He has to follow the Constitution and the laws of the United States. He has to take care that the laws are faithfully executed.

If a statute is unconstitutional, then the Constitution would trump the statute. But if a statute is not unconstitutional, then the statute is binding on the president and everyone else.

LEAHY: But does the president have unlimited power just to declare a statute -- especially if it is a statute he had signed into law -- to then declared that unconstitutional, and he's not going to follow it?

ALITO: If the matter is later challenged in court, of course, the president isn't going to have the last word on that question. That's for sure. And the courts would exercise absolutely independent judgment on that question. It is emphatically the duty of the courts to say what the law is when constitutional questions are raised in cases that come before the court.

LEAHY: Now, that is an answer I agree with. Thank you.

In other areas, SEC, can he order them to stop an investigation if it's if somebody doesn't want to investigate it?

ALITO: Well, the independent agencies are governed by Humphrey's Executor and cases that followed that. And there has been restrictions placed on the removal of commissioners of the independent agencies and they have been sustained by the Supreme Court.

And that is where the Supreme Court precedent on the issue stands.

LEAHY: Is that settled law?

ALITO: It is a line of precedent that culminated, I would say -- there have been a few additional cases relating to this, the Edmund case and the Freitag case -- but I would look to Morrison, which was an 8-1 decision involving a subject of considerable public controversy, the removal of an independent counsel, removal restrictions on an independent counsel.

LEAHY: I'm still having some difficulty in statements you've made about the unitary form of government and how you would apply it.

You suggested an answer to a question I asked. When people's rights are violated they should have their day in court. The court's are there to protect the rights of individuals. I don't think anybody in this room would disagree with that.

It's the practice we look at.

In PIRG v. Magnesium Elektron, you concluded the Congress didn't have the constitutional authority to authorize citizens to bring a suit against a polluters under the Clean Water Act.

Whether the people had justiciable claims or not, there were a number of people downstream from the Magnesium Elektron. They said the water had been polluted. They brought a suit. You threw it out. Judge Lewis dissented; said it should have gone back to the lower court on the question of facts.

I'll give you a two-part question. One, why did you send that back? And do you accept Laidlaw as being settled law?

ALITO: Well, Magnesium Elektron presented the question of whether we had a case or controversy under Article III -- and that's the fundamental limit on our jurisdiction.

The Supreme Court has said that we do not have a case or controversy before us if we do not have a party that has constitutional standing, which requires injury in fact.

ALITO: And the issue was whether the plaintiffs in that case had established injury in fact.

There was a plant that was discharging certain things into a creek which eventually emptied into the Delaware River. And the plaintiffs in the case alleged that they enjoyed the Delaware River in a variety of ways -- they ate fish from the river, they drank water from the river, they walked along the river -- but there was nothing in the evidence -- and Judge Lewis agreed on this -- Judge Roth wrote the opinion. I agreed with Judge Roth and Judge Lewis with us on this point.

There was nothing in the record...

LEAHY: But didn't Judge Lewis agree with you on the legal point, but he suggested sending it back to the lower court to determine whether there were facts to give standing?

I mean, we all agree, you can't be in a case if you don't have standing. But didn't Judge Lewis say, "Send it back to the lower court so they can determine on the facts whether there might be standing"?

ALITO: The evidence that was before us did not show that there was any standing on the part of the plaintiffs. There was no evidence of harm to the Delaware River in any way from the discharges and that was the basis of Judge Roth's opinion with which I agreed.

As I recall, Judge Lewis's point was that the case should go back to the district court so that the plaintiffs could have an opportunity to present additional evidence.

But as I recall, they were not even arguing before us that they had additional evidence. They were not arguing before us, as I recall, that, "We have additional evidence and we would like the opportunity to go back to the district court to present it."

That's my recollection of the matter.

LEAHY: And the other part of my question is Laidlaw settled law?

ALITO: Well, Laidlaw is a precedent on the Supreme Court. And my answer to the question there is the same: It is entitled to the respect of stare decisis.

SPECTER: Thank you, Senator Leahy.

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