Date: January 12, 2006
Senator: Feinstein
Topic:
Contents
SPECTER: Welcome back, Judge Alito. A thought just crossed my mind that this is the only time when you walk into a room that everybody doesn't stand up.
(LAUGHTER)
ALITO: That happens to me all the time at home, Senator.
(LAUGHTER)
SPECTER: I'm not saying when you come home, Judge Alito. The reception for a judge or a senator or even the chief justice is very different at home than when he walks into a room and a bailiff shouts, "All rise." Just crossed my mind that we weren't all standing up. But as Chief Justice Roberts said, this is a discussion among equals; that is, until you're confirmed, if confirmed.
Senator Kyl?
KYL: Mr. Chairman, I'll reserve my questions for now. Thank you.
SPECTER: Senator Kyl is reserving his time.
Senator Feinstein is about to join us, coming in, so we'll await her arrival, which should be imminently.
I think Senator Feinstein is going to be a few moments or more, so let's turn to Senator Feingold.
FEINGOLD: Mr. Chairman, if that's your wish, I'd certainly defer to Senator Feinstein if she wants to reclaim her time when she comes. But I'll get started if you want.
SPECTER: Let's wait another minute or two for her. She's not in the back room and she's not in the corridor. But let's wait another minute or two for her.
SPECTER: Senator Feinstein, you have made another dramatic entrance. We were all assembled for the committee action on Chief Justice Roberts' when you were on the floor in your position on the Appropriations Committee, managing a bill, and the 17 of us were there.
FEINSTEIN: Not quite, but I thank you for that...
SPECTER: And you walked in with drama, as today. You have asked for up to 10 minutes, Senator Feinstein. We will set the clock at 10, but as I have indicated, we have some flexibility. We see the light at the end of the tunnel.
FEINSTEIN: I may take 20, if that is all right with you, Mr. Chairman.
SPECTER: We'll reset the clock at 20, Senator Feinstein.
FEINSTEIN: Thank you.
Good morning, Judge Alito.
ALITO: Good morning.
FEINSTEIN: I want to begin a conversation, hopefully. Let me try to set the precedent for it because others have discussed this, as well. You said, and I think everybody agrees, that nobody is above the law and nobody is beneath the law.
And you made comments about the balance of powers, that all branches of government are equal.
There are three of us on this committee -- Senator Hatch, Senator DeWine and myself -- that also serve on the Intelligence Committee.
FEINSTEIN: And Intelligence has the duty to provide the oversight for the 15 different agencies that relate to America's intelligence activities.
And so this question of presidential authority at a time of crisis -- not necessarily a full declaration of war state to state, but a time of crisis -- because very prescient right now.
And I wanted to talk to you a little bit about the president's plenary authorities as commander in chief -- "plenary" meaning unrestrained and unrestrainable, his plenary authorities to defend the United States -- and whether it is true that no law passed by Congress binds him if he determines that it interferes with his commander in chief role.
Now, we have explicit powers, as you've said, under the Constitution. And in Section 8, we have the explicit power to raise and support armies, to provide and maintain a Navy, to make rules for the government and regulation of the land and naval forces. And the National Security Administration (sic), known as the NSA, is within the Department of Defense. It's headed by a general.
So it would seem to me that there is an explicit power for the Congress to be able to pass the rules that govern the procedures of the National Security Administration (sic).
Now, again to the Jackson test. When the president's power is in least is when the Congress has legislated. And this is where the national -- excuse me -- the Foreign Intelligence Surveillance Act, known as FISA, comes in.
FEINSTEIN: And FISA is very explicit. And let me read a part of it to you.
"Procedures in this chapter and the Foreign Intelligence Surveillance Act, known as FISA, shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such act, and the interception of domestic wire and oral communications may be conducted."
It does provide -- you used the word "general." It does provide two exigent circumstances. One is, following a declaration of war, the president has 15 days in which he can wiretap. The second exigent circumstance is an emergency provision that if he needs emergency authority, he can go -- the attorney general can authorize, provided they go to the FISA court within 72 hours.
I was concerned; there are two questions in this one statement.
FEINSTEIN: The first question is: If we have explicit authority under the Constitution to pass a law and we pass that law, is the president bound by that law or does his plenary authority supersede that law?
ALITO: The president, like everybody else, is bound by statutes that are enacted by Congress, unless the statutes are unconstitutional, because the Constitution takes precedence over a statute.
But in general, of course, the president and everybody else is bound by statute. There is no question about that whatsoever. And the president is explicitly given the obligation under Article II to take care that the laws are faithfully executed.
So he is given the responsibility of making sure that the laws are carried out.
FEINSTEIN: Let me press you on "unconstitutional." Very few of us on this committee are not lawyers. I'm one of them. So let me just speak in common, everyday terms.
There are two resolutions that were passed: one authorizing the use of the military force involving Iraq and one involving use of terrorism. Never was there any indication that domestic wiretapping of Americans was involved in anything that was done.
As a matter of fact, the former minority leader just wrote an op- ed piece in which he said he was approached by the administration shortly before the second resolution was passed and asked to add certain words that essentially added the words "deter and preempt any future acts of terrorism or aggression against the United States."
FEINSTEIN: And he refused to do it.
And, Mr. Chairman, if I could place this...
SPECTER: Without objection.
FEINSTEIN: ... statement in the record, since we are going to be having hearings on what's happened. I think this is an inappropriate bit of legislative history. I'd like to place it in the record.
SPECTER: Thank you, Senator Feinstein. It will be made a part of the record without objection.
FEINSTEIN: Thank you.
So, bottom line: Two resolutions passed; no consideration by the Congress or any member that I know of, no legislative history to indicate that we included in these authorizations authorization to wiretap Americans.
The question then comes, I guess, does the plenary power of the president supersede this?
ALITO: I think there are two questions. Maybe there are more than two questions, but there are at least two questions.
The first question, to my mind, is the question of statutory interpretation. What is the scope of the authorization of the use of military force?
And I don't know whether that will turn out to be an easy question or whether it will turn out to be a difficult question. But it is a question of statutory interpretation like any other.
Of course, there's a great deal at stake and maybe a lot more at stake than is involved in a lot of issues of statutory interpretation.
But if I were required to decide that, I would approach it in essentially the same way I approach any other question of statutory interpretation. What does the word of the law -- or, what does the law say? Are there terms in there that carry a special meaning because of the subject matter that's being dealt with?
ALITO: And I think legislative history can be appropriately consulted.
And I would have to decide that in the context of the whole process of deciding legal questions, as I said, like any other issue of statutory interpretation.
Once a decision was reached on the issue of statutory interpretation, it might be necessary to go further depending, I guess, on the answer to that question.
And I would also say in connection with this that we have a little bit of guidance as to the interpretation of the authorization of the use of military force in the Hamdi case, where the court interpreted that enactment and determined that the detention of an individual who was captured on the battlefield in Afghanistan fell within the scope of that. And they relied there, I think, on customary practices in the conduct of warfare in determining what fell within the scope of the authorization.
FEINSTEIN: Let me stop you right here, because that's right.
Because detention is a necessary following of an authorization of military force, so detention is logical.
When you've got a specific statute that covers all electronic surveillance, the question comes: Is that statute nullified and does it necessarily follow that the wiretapping of Americans without -- and I'm not saying there isn't a reason to do this.
FEINSTEIN: What I'm saying is, that we set up a legal procedure by which you do it and we set two exigent circumstances to excuse a president from having to do it. Therefore, doesn't that law prevail?
ALITO: As I said, I think the threshold question is interpreting the scope of that and it might turn out to be an open-and-shut argument. It might turn out to be very complicated argument. I would not presume to voice an opinion on the question here, in particular because I have not studied it in the depth that I would have to study it before reaching a judicial decision on the matter.
Then, depending on how that issue was resolved, it would be -- it might be necessary to go on to the constitutional question. I think you exactly outlined where that would fall under Justice Jackson's method of analyzing these questions. This would be in the category in which, if it was determined that there was not statutory authorization...
FEINSTEIN: There was. No statutory authorization to wiretap, right?
ALITO: If it was determined that there was statutory authorization, then I do not know what the constitutional issue would...
FEINSTEIN: But, if there wasn't...
ALITO: There might be a constitutional issue. Let me stop there.
There would be a Fourth Amendment issue, obviously.
If you went beyond -- if you determined that there was not statutory authorization, then as far as the issue of presidential power is concerned, you would be in Justice Jackson's scheme, in the category where the president -- you would have to determine if this is the argument that is made; whether the president's power, inherent powers, the powers given to the president under Article II, are sufficient, even taking away congressional authorization, the area where the president is asserting a power to do something in the face of an explicit congressional determination to the contrary.
FEINSTEIN: Now, in my lay mind, the way I interpret that -- and correct me if I'm wrong -- is that you essentially have a conflict, and that it hasn't been decided whether one trumps the other.
ALITO: I think that's close to the point that I was trying to make. The way Justice Jackson described it was that you have whatever executive power the president has minus what Congress has taken away by enacting the statute.
FEINSTEIN: Even though you have a statutory prohibition, even a criminal prohibition?
ALITO: Well, I'm not suggesting how the determination would come out. I think that it is implicit in the way Justice Jackson outlined this that presidential -- he said it expressly -- presidential power is at its lowest in this situation, where the president is claiming the authority to do something that Congress has prohibited.
FEINSTEIN: OK. Enough of that. Let me move on.
In WR Grace v. the EPA, a chemical company released large amounts of ammonia into the local aquifer in Lansing, Michigan. Under the Safe Drinking Water Act, the EPA ordered the chemical company to clean up the discharge to reduce the concentration of ammonia to a level that wouldn't threaten the health of the community.
FEINSTEIN: The chemical company challenged this EPA decision. You cast, as I understand it, the decisive vote to overrule the EPA, permitting the company to leave more ammonia in the aquifer, despite the EPA's determination that this level of ammonia would continue to endanger the water supply.
In her dissent, Judge Mansmann urged deference to the EPA in matters of science, noting that, quote, "The high degree of deference we are to accord the EPA is a cornerstone to the EPA's power, enshrined in the Safe Drinking Water Act, to protect the public health, the environment and public water supplies from the pernicious effects of toxic wastes," end quote.
Do you agree with the dissent that a reviewing court must generally be at its most deferential when reviewing factual determinations within an agency's special area of expertise?
ALITO: I do agree with that. I don't think there's any question about that.
FEINSTEIN: Do you believe that where an agency is taking action to protect the health of citizens, additional deference should be given?
ALITO: I think that deference is owed to the expertise of administrative agencies. That's an important part of administrative law. And when you're dealing with an agency like the EPA, you would defer to their area of expertise. And I think that's correct.
FEINSTEIN: Should the EPA be accorded the same deference as other governmental agencies?
ALITO: I don't see why it should not. It's the expert on environmental questions.
ALITO: And, for example, if the EPA issues regulations interpreting a statutory provision and its given broad authority under the environmental laws frequently to implement choices that are reflected in the legislation, then I think that it's entitled to a broad measure of deference under the Chevron decision if it issues rules and if any reasonable interpretation of the statute is entitled to deference from the courts.
FEINSTEIN: OK. Let me go way back.
And I recognize that time has gone by and I recognize you were in a different position, but these questions are really aimed to point out the importance of the commerce clause to us.
In 1986, Congress passed the Truth in Mileage Act to prevent odometer fraud. As deputy at the Office of Legal Counsel, you recommended that President Reagan veto the bill because you believed it violated the principles of federalism.
In the draft statement for the president, you wrote, "It is the states and not the federal government that are charged with protecting the health, safety and welfare of their citizens," that's a quote. President Reagan did sign the Truth in Mileage Act.
Does it remain your opinion that it is the states, not the federal government, that are charged with protecting the health, safety and welfare of Americans?
ALITO: Both the federal government and the states have responsibilities in those areas.
Historically, the primary responsibility with respect to those concerns has been with the states. But with the expansion of federal regulatory programs, the federal government has taken on broader and broader responsibilities in those areas and now has very substantial responsibilities in all of those areas under regulatory schemes that have been in place for a long time and I don't believe are being challenged on constitutional grounds at this time.
If I could just say a word about that memo, which I read for the first time in 20 years recently, it's a brief statement. And as I read it, what it is primarily expressing it is not an interpretation of the scope of Congress's constitutional authority but a recommendation based on the federalism policies of the Reagan ministration.
The Reagan administration had a policy of implementing its view of federalism concerns through policy-making decisions.
ALITO: In other words, its policy was to go further in respecting what it viewed as the federalist system -- as our federal system of government than the Constitution required, to go further as a policy matter.
And as I read the brief statement, that's what was being expressed there.
FEINSTEIN: So if I understand that, quickly, what you're saying is, this was written as staff in an administration to follow a policy.
But are you also saying, as a judge, this would not necessarily be a position that you would hold in any case?
ALITO: As a judge, I would have no authority and certainly would not try to implement any policy ideas about federalism.
Congress can implement policy ideas about federalism. The Garcia case, in fact, is based on the view -- this is what the Supreme Court said there -- that the primary way in which the federalism concerns that were expressed in National League of Cities was to be implemented in the future was through policy decisions made by Congress.
They said the states are represented in Congress through the membership in the Senate. And protection of the prerogatives of the states should be left to policy decisions made by Congress or decisions made by Congress in implementing its view of how the system of federalism should work.
ALITO: And an executive, a president, can take a similar approach. A president can say: Although the Constitution allows the authority of the federal government to go this far, as a policy matter, I do not want to go along with legislation that goes up to the limits of what the Constitution allows. As a policy matter, I want to stop short of that. As I read this memo, that is what we were saying there.
FEINSTEIN: Thank you very much.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Feinstein.
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