Alito’s Shocking Revelation (DC Yawns)

[pat_k]

When Biden questioned Alito on the extent of executive power, the gist of his question was this:

If the men and women in Congress, as representatives of the people, had passed a resolution that the United States MUST NOT invade Country X, could the President lawfully and constitutionally order an attack on Country X?

For any sane person, the answer would be "Absolutely Not!"

Shockingly, Alito asserted that he did not know whether or not the President had such authority: that he would have to wait until he was presented with a specific case to figure it out.

Perhaps Alito actually knows better and is just bending over backwards not to contradict King Bush, but if we take him at his word, his insane assertion that our simplest and most absolute tenets are "open questions" makes him so dangerous that even the most reactionary members would reject him out of hand if his statements ever penetrated their thick skulls.

Today Alito proved himself to be a menace to the sole moral principle on which this country was founded – the principle of consent of the governed. Alito has literally said that he doesn’t know if we are a fascist dictatorship or not. Either that or he’s just lying about what he wants us to be.

It was puzzling that Biden failed to express shock or point out the insanity of Alito's response, but if we proclaim our horror with the force of numbers, we can do more to send this insane man packing than anything that could be said in the hearings.

It’s time to contact members of Congress and the media; to get on the blogs and make it impossible for them to "gloss over" the dangerous insanity of his position.

[liveoaktx]

1. VIDEO of that

With Biden's comments on Today first about Executive power

[pat_k]

5. Thanks. Having the specific clip is great! Key question is at 09:45

This is great!

I didn't have it available to transcribe. Biden poses the key question at about 09:45.

Let's say we didn't want the President to invade Iran. The administration argues that we could pass a resolution saying tht "Do Not Invade Iran. You Have No Authority to Invade Iran", and the President could -- the next day -- invade Iran.

...So it is a really kind of important whether or not you think the President does not need the authorit of the United States Congress to wage a war when there is NOT an imminent threat against the United States. And that's my question.

The exchange is so outrageous, some might be sketical that it actually happened. The tape cannot be denied!

[liveoaktx]

9. The whole idea of Bush bypassing Congress to attack Iran and Syria

is outrageous. But it's being pushed by his administration. I've said this before but I also have a clip of Rice telling Congress a few months ago that the Iraq War Auth gives Bush that power. Boxer and Chafee disagreed with her but she blabbed on about how he did.

The American public needs to realize this.

[liveoaktx]

14. Adding this video of Rice saying that Bush doesn't have to go

back to Congress to attack other countries

This is seriously f*cked up, but it is a prevalent attitude in the Bush administration.

[pat_k]

17. Thnaks!

[Zen Democrat]

2. Sammy The Goose proved he's no "strict constructionist" today.

The 14th amendment says "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

He was questioned as to whether the Congress could pass a law saying that children of illegal immigrants born in the United States are NOT citizens. Alito gave his usual pass -- he'd have to see the law, blah, blah, blah. But a strict constructionist would see this as clear and irrefutable.

[annabanana]

4. it was worse than that..

Scalito couldn't even come up with a hypothetical example in his own imagination, off the top of his head, any instant where congress couldn't deny anyone his or her citizenship...

[WhereThereIsFire]

8. Just more evidence he's a Scalito-lite.

[pat_k]

19. He doesn't know whether the U.S. is a dictatorship or a constitutional dem

Go to Congress.org. With just a couple clicks, your email or fax can be on it's way. You can look up and contact local media from there too!

He has made his views crystal clear. He doesn't know whether the United States of America is a dictatorship or a constitutional democracy.

A Justice that questions the basis on which the nation was founded is capable of anything. Anything at all.

We must stop him.

We need to put it in stark terms.

Alito thinks it might be AOK for the President to order our military to drop nuclear bombs on another country, even if the Congress (i.e., the Voice of the People) had unanimously passed a resolution prohibiting him from ordering an attack of any kind.

If you haven’t contacted your representatives, NOW is the time.

[CornField]

3. After following the question answer session, I'd like to ask Alito

why, if he feels the executive branch has such far reaching powers, would he want to be a part of a silly, inconsequential institution like the Supreme Court.

[pat_k]

10. . . .Or believe his appointment is subject to Congressional review. . .

He apparently views every established tenet and instituion as open to question. For him, America as we know it does not exist.

Insane. Dangerous.

[Hamlette]

6. I would answer the question the same way Alito did

AND, if this was a liberal judge appointed by a Dem prez, you'd be cheering his answer.

[pat_k]

25. So, in your view, America is a dictatorship?

Apparently, you live in a dictatorship where the following can happen:

1) The people are 100% agreed that the United States of America must not invade Country X.

2) The people call on their representatives to pass a resolution that the United States of America will not invade country X unless the President obtains a new resolution authorizing the attack.

3) The President ignores the will of the people and orders the military to drop Nuclear bombs on Country X.

4) The people listen to some tortured logic that they had actually given the President the power to do that. They shrug their shoulders, and say, oh well.

Such a thing could not happen in a true America. In a true America, the people are sovereigns. No general would pass on the order. Everyone would understand that the President had apparently lost his mind and must be removed from power (Declared unfit, Impeached, whatever).

Biden did not present such an extreme situation (100% agreement, and so on) but the incontrovertable principles are the same.

[Hamlette]

30. no, and actually, that's not what Alito said either

what he said is what every thoughtful lawyer/judge should say: I don't know the answer, I'd have to do the research. Which is the most honest and forthright answer he could give.

And, on the facts at hand, let's say Congress said "do not invade Japan". Then the president, and instead of thinking of the president as Bush, think that it is a different president, let's say FDR. So FDR finds out that Japan is going to bomb Pearl Harbor killing hundreds or thousands of Americans. Let's say he has info that the planes are sitting on an island ready to go tomorrow. Would you want FDR to have the power to order that the planes be taken out? Do the police powers give him the authority to do so? I sort of think so. Otherwise, how did Clinton have the power to take out the "asprin factories"? I honestly don't know because I've not read the law. And neither has Alito. So he gave the right answer.

Trust me. I function as an appellate judge for a government agency. If a party loses its case before the judge, the appeal comes to me. I can't tell you how many times people have presented me with one side of the facts and I think: "gee, s/he should have won" then the case comes to me and I read the law including all the cases and I read the other side's arguments are realize I was wrong. That's why I never say "gee, you should have won" anymore. My motto: ask me and I'll look it up.

[pat_k]

33. Alito told us the President of the United States may be a dictator.

He said it was an open question whether or not the President could ignore the express will of the people and violate a Congressional resolution prohibiting him from attacking another nation.

If the Congress (i.e., the voice of the people) had passed a resolution prohibiting FDR from attacking, that would be it. He would have no power to act until he obtained a new resolution from Congress.

If the Congress had prohibited Bill Clinton from dropping bombs anywhere in the middle east, Bill Clinton would be unable to order any bombs dropped until he obtained a new resolution from Congress.

If the leader of a nation can ignore the will of its people to do whatever he pleases, that nation is a dictatorship. Alito has told us that the President of the United States may in fact be a dictator. This view makes him a very dangerous man.

[Hamlette]

37. I disagree

any elected official can ignore the express will of the people. In fact, it is their responsibility to ignore the express will of the people if they see fit.

I don't see how a Congressional resolution has any effect, certainly not in curtailing the power of a separate branch of government.

There are zillions of US Supreme Court decisions on just this question: executive power and congress' power to limit it. I'd have to read them all before I could decide if Bush had the power or not. It really isn't that clear.

[pat_k]

38. No, you don't need to read every opinion. These are basic principles.

In the United States of America, the collective will of the people is the ultimate authority. We have not empowered any elected official or institution to overrule our authority or violate our will.

We elect our government officials and empower them to make certain decisions without consulting us. Such independent decisions ARE NOT a violation of our will -- they are an integral part of the system we created. At the end of the term we have defined, we decide whether or not we are satisfied with their service. We decide whether we want to return them to power or try someone new. If they abuse the power we entrust them with before the end of their term, we have put in place ways to remove them from power.

We recognized we may make laws to address specific problems that conflict with the basic principles we have established. We empowered the judiciary to serve as the arbiter of such conflicts.

In short, we give certain powers to the institutions we have created, but these are OUR institutions. We gave them powers, but if we choose, we can take those powers away.

In our system, the Congress is the closest to the people. Of the two bodies, the House is more accountable to us than the Senate. As our voice, we have given Congress power over the other branches of our government. We gave Congress the power to Impeach the President. We gave Congress the power to remove members of the Supreme Court. We have given neither the judiciary nor the executive branch such powers over Congress.

This is the system we created. The whole thing is an expression of our collective will.

We do not give ANY part of the system the power to violate our collective will. If a President ordered the military to take action that Congress -- the voice of the people --had expressly forbidden, he or she would be committing a crime against our constitutional democracy. This is not an open question. We did not create a dictatorship.

[Hamlette]

39. Congress cannot pass a law limiting either other branch

in that branch's exercise of its constitutionally given power.

The debate was over whether there are implied powers. The court decided yes.

so, if Congress passed a resolution that said, to use an obvious example, that the President was NOT the commander in chief, the resolution would have no effect. Because the constitution says the president is the commander in chief.

The long line of cases says there are other powers that a president has by implication and I think it's the Youngstown case where the court majority was split on whether congress can limit implied powers.

I would think, without knowing, that the president has the implied power, as commander in chief, to use our military in an emergency situation even if it appears to look like war. (The prez has done lots of things under the police power that look a lot like war...Vietnam and Korea come to mind.)

And, I want the prez to have that power. Maybe not THIS prez cause I don't like him, but other presidents.

I even disagree with your first statement but I fear we are talking past each other. Mainly because this debate has become too personal (not you and me, but Bush and Alito). If Wm O Douglas said there might be something in the law that would give FDR the power to act in extraordinary situations I would think Douglas might know something I don't know. If I were really troubled I read the whole line of cases.

And if a majority of Americans thought Clinton should be impeached for having sex with an intern I would expect MY representative in Congress to stand up to "the will of the people" and say "no".

And we don't have ultimate "authority" we have ultimate sovereignty. We have given to the government certain authority to act for us...as it/they see fit. Our only authority is at the ballot box. And our collective will happens to suck right now. Beware the tyranny of the majority.

[pat_k]

42. Nothing here addresses the question Biden posed n/t

[WhereThereIsFire]

7. Alito is a criminal

Anything he says is suspect. For failing to recuse himself on the Vanguard cases, he should have been disbarred ... and certainly isn't suitable for any position on any court. What a joke that this criminal is going to be seated on the court. But, I guess no bigger joke than the Nazi currently holding the presidential office.

[leftchick]

11. THIS IS THE NUMBER ONE REASON TO FILIBUSTER THE BASTARD!

omg omg omg.... I am a fucking wreck. I need some vodka, or Xanax or something.
I have two little boys and I will be damned if they grow up in a fascist country. I am off to Canada if the Democrats let this fascist, misogynist,racist, corporatist rat bastard in.

:argh:

[pat_k]

13. Yes!! Even people on the far right can grasp this one!! n/t

[liveoaktx]

15. Of all the issues, the executive power is the # one-Bush as dictator

who, like Saddam, is above the law, and can choose to do as he pleases for any justification.

[pat_k]

12. Shameless promotion: Kick and Recommend if you think we . . .

. . .need to get the truth out: This man is a menace this man is to our founding principle -- the consent of the governed.

[SlipperySlope]

16. Congress cannot override President as Commander in Chief

The question is deeper than it appears. The balance of power between the Congress and the President has been an unresolved constitutional question for some time.

More here:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=117625&mesg_id=119521

The simple version is: any "law" passed by congress that interferes with Presidential authority as Commander in Chief may be unconstitutional, and therefore not a law.

[orwell]

20. This is clearly...

...not the intent of the framers. The Executive prosecutes the war, he doesn't declare it.

A general is a commander. Can a general declare war? Can he/she send troops into battle without convening authority?

Only Congress can declare war. Once declared, the President assumes the mantle of authority over the prosecution of the war as Commander in Chief. In fact the Constitution even says:

Article 1 Sec 8

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

The framers wanted to make it difficult to expend blood and treasure for war. They wanted debate before commiting lives and monies. That debate is required by law to be the responsibility of Congress.

This "unitary executive" canard is being pushed by the ideological descendents of the very royalists we fought the revolutionary war against. There can be nothing further from the truth.

[pat_k]

22. Don't fall into the "it's complex" trap. . .

It is not complex.

We know the principles on which this nation was founded. You don't need to take apart the words to identify blatant violations of those principles.

The law is intended to serve our will, not thwart it. We can never allow a "technical" or "legal" argument to trump the reality of our basic principles.

[orwell]

23. I Never Said...

...it was complex. I think it is clear as well. I completely agree that this latest "unitary executive" assertion is absurd on its face, not only in regards to historical intent, but as a logical argument as well.

[pat_k]

26. The warning was not only for you. I intended it as a general caution. . .

Sorry. I didn't mean to pick on you particularly. I just wanted to point out that there are some things that just don't pass the smell test. The notion that the President is authorized under the constitution to order an attack when the Congress has passed a resolution that prohibits him from doing so is a notion that doesn't pass the smell test.

Very often, we enter debate on points that are simply not debatable. When we do this, we are moving toward their fascist view of the law, where "complexity" and legal technicality can yield results that violate basic principles and the intent of our laws.

I think it is very important not to join in their legalistic arguments. I think it is more powerful to define simple questions that put the principles at stake on display.

For example, as we lobbied for members of Congress to object to the Ohio electors on January 6th, we asked the following question: "Are hours-long poll-tax-lines for poor, minority voters AND none for affluent, white voters a tolerable condition for you? On January 6th, 2005, if you fail to object to electors from any state in which this is a documented reality, you become complicit with the perpetrators of this condition."

[orwell]

31. I think we are on the same page...

...it doesn't pass the smell test.

[SlipperySlope]

32. This isn't new to Bush...

But it is complex. By creating standing armies (which the President is de facto commander of), the Congress eliminated one key check against the executive.

You wrote: The notion that the President is authorized under the constitution to order an attack when the Congress has passed a resolution that prohibits him from doing so is a notion that doesn't pass the smell test.

To which I could respond; The notion that the Congress could in any way limit the constitutional powers of the President as Commander in Chief by directing him which nations he could or could not attack does not pass the smell test. Once the Congress has raised an Army, it it up to the President to command it as he sees fit.

I will point out though, that George Washington (the original Commander in Chief) would certainly have never contemplated doing anything that Congress had explicitly denied him, nor would he have tried to twist the words of Congress to suit his purposes.

[pat_k]

36. You said it. Geo. Washington would never have contemplated. . .

. . .doing anything that Congress explicitly denied because he knew that only a dictator would take such action. In a true America, such actions are wrong on their face.

As Bugliosi pointed out back in 2001 in his discussion of Bush v. Gore:

. . .there are two types of crimes, malum prohibitum (wrong because they are prohibited). . . and malum in se (wrong in themselves) crimes. The latter, such as robbery, rape, murder and arson, are the only true crimes. Without exception, they all involve morally reprehensible conduct. Even if there were no law prohibiting such conduct, one would know (as opposed to a malum prohibitum crime) it is wrong, often evil.

The constitution DOES NOT grant the President dictatorial powers in any capicity. Even if not explicitly prohibited under the constitution, ordering an attack in violation of a Congressional resolution prohibiting it is wrong in an of itself-- a true crime against our constitutional democracy. Alito is asserting that the Constitution may actually permit such behavior. He is wrong and must be stopped.

[pat_k]

21. Nonsense. They can Impeach him, he cannot Impeach them.

In the United States of America, the People are the sovereigns, Congress is our voice.

Of course there can be conflict between the fundamental "rules" the people have established, and the "rules" we make to resolve specific problems. The Judiciary is the arbiter of such conflicts.

But if Congress passes a "Do Not Invade" resolution, that is it. The President has no authority to unilaterally override them. If he thinks he does, he could to take it to SCOTUS and they would slap him down. We do not live in a dictatorship, and even the most reactionary know it.

It is NOT a deep and complex question. When the question is posed, every American knows the answer.

If We the People, through our representatives in Congress, tell the President he does not have the authority to attack Iraq (e.g., unanimously pass a resolution), can he ignore us and order nuclear bombs to be dropped?.

Hell NO!

We know this is not a dictatorship, and no tortured legal interpretations can make us one.

[orwell]

24. The Bush Shills...

...will argue that impeachment or the cutting off of funds is the people's only recourse. They will say this bcause they know neither is likely to happen.

But there is a logical falacy to the Executive Branch supremacy assertion. If the President has unlimited power as Commander-in-Chief, can he order the military to arrest or kill his political opponents to "protect" the American people. (BTW with the Bushies recent mumblings about the treason of dissent hitting the wires, are we too far from this scenario?) This is absurd.

Why? Because the President swears to preserve, protect and defend the Constitution, not the American people. His obligation is to the law, as enacted by the Congress, and interpreted by the Judiciary.

[pat_k]

28. and The People ARE the law [edited 7:30 EST]

When our goverment officials take an oath to uphold the constituion, they are taking an oath to uphold the collective will of The People. We decide what the institutions of our government can and cannot do to provide economic security, enforcement of our laws, safety nets, and so on.

You've got it -- that Bush has no business unilaterally deciding the actions required to "protect us" -- but your case is a bit more legalistic than I would make it.

"We the People… do ordain and establish this Constitution for the United States of America."

That little word "for" is very important.

It is "We the People" who give power to our creation, the United States of America, not the other way around.

The authority of government lies entirely and irrevocably within the Body of The Whole, "We The People". Us. You. Me. Our Parents. Our Grandparents. All those who have fought for (and resisted) our march to a more perfect union.

The notion that the President could be authorized under the Constitution to order an attack when our representatives in Congress have passed a resolution that prohibits him doesn't pass the smell test.

This is not a debatable point. They pretend it is debatable and we need to take care to cut through this particular kind of propaganda. Rationalizations grounded in "complexity" and legal technicality cannot be allowed to yield results that violate our basic principles and the intent of our laws.

[orwell]

34. It's funny you mention this...

...I had the exact same conversation with another poster a couple of weeks ago. I objected to the words "endowed by the creator" in the Declaration. I noted that no such words exist in the Constitution for a very good reason, that the legal authority comes from the consent of the governed.

Many, including the illustrous Will Pitt took umbrage with my nitpicking the language. But I felt it was important to point out that we the people empower the law. The elected work for us, they administer, not empower. I think this is a critical notion.

Also, not to get to far afield, if we accept the notion that this grant flows from "God," we open a Pandora's box. Whose God? Do Wiccans need apply? How about Satanists?

The law is a social compact, enacted and enforced by our free consent. In this respect, the President has no more authority than than the poorest citizen living in a cardboard box under the freeway, as long as they can both freely vote and their votes are truly counted.

[pat_k]

35. Simple truths -- they say it all! n/t

[glitch]

27. Excellent post. nt

[flyarm]

40. * is not commander in chief to all americans ..he is only ...

commander in chief to the military..not to americans not in the military..to us he is our employee!!!!!!!!!!!

fly

[JWS]

43. It depends on who creates law first

If Congress creates a law where no law or executive order exists, than the congressional law becomes the supreme law of the land, however, if president creates an executive order where there is a vacuum than that becomes the SLL.

[orwell]

18. The Real Problem...

...is the abrogation of the Declaration of War by the Congress. A war is lawfully declared when Congress declares it. The last time this happened was WWII. Since that time, the executive branch has "expanded" its war making authority into something that is clearly unconstitutional. But since we all sat by and let it happen, the waters are now muddied.

Congress declares war. The Executive prosecutes it. It's right there in the Constitution.

There is no "War on Terror" because Congress has never declared it.

If it is true in his executive capacity that the President can do whatever he/she wants in "defense of the nation," that what is to stop him/her from declaring an impeachment attempt during wartime as "treasonous." Could Congress then be arrested and detained, or shot for treason?

Do you see the circular logic here? What Alito and his ilk assert is not separate but equal branches of government, but lawless anarchy. Could the President arrest Congress? Could Congress declare war on the executive or judicial branch?

This is why the powers of each branch were so clearly enumerated. Even a cursory attempt at discovering the intent of the founders, fresh from the royal persecution of an earlier King George, would put the lie to the notion of the "unitary executive." If anything, the greatest responsibilities were clearly put in the hands of the Congress precisely so that power could NOT be concentrated into too few hands.

[pat_k]

29. I prefer a simplier view. . .

As I noted in a post above:

I think it is very important not to join in their legalistic arguments. I think it is more powerful to define simple questions that put the principles at stake on display.

For example, as we lobbied for members of Congress to object to the Ohio electors on January 6th, we asked the following question: "Are hours-long poll-tax-lines for poor, minority voters AND none for affluent, white voters a tolerable condition for you? On January 6th, 2005, if you fail to object to electors from any state in which this is a documented reality, you become complicit with the perpetrators of this condition."

[flyarm]

41. thois so called "war in Iraq" is not a war..it was never declared a war!

this is no different than vietnam..its a police action as it was never declared a war by congress!

fly

[JWS]

44. By saying these things we are hurting

our troops moral, and giving comfort to the enemy. We must kneel down and worship * for he is the word, he is the way!

-A devout believer