Thursday, January 12, 2006
DURBIN: Unitary executive: The reason it's important is that there are some people, even on the Supreme Court, who believe the unitary executive theory -- I don't know if it's always associated with the Federalist Society but sometimes associated with the Federalist Society and their members -- but the unitary executive theory gives the president extraordinary power.
And under that scope of power theory, some argue that a president, particularly in A war time situation can ignore and violate laws as commander in chief. Critically important and timely, as we debate eavesdropping and the like.
You have made it clear that when you spoke to the Federalist Society in 2000, you were not talking about scope, but you were talking, instead, as to whether or not he would have control over the executive branch. I hope I'm characterizing your statement correctly.
ALITO: That's exactly correct. And I think in the speech I said there's a debate about the scope of what is meant by the executive power, but there isn't any debate that the president has the power to take care that the laws are faithfully executed, and that was the scope of the power I was discussing.
DURBIN: My question to you is this, what about those who do argue the unitary executive scope theory? Do you agree with their analysis? Do you disagree? Would you be joining Justices Scalia and Thomas, Justice Thomas in particular in his dissent in Hamdi, in arguing that this situation a president has more power than the law expressly gives him?
ALITO: I don't think that the unitary executive has anything to do with that. Let me just say that at the outset. And if other people use that term to mean the scope of executive power, that certainly isn't the way that I understand it.
DURBIN: That's not your point of view. You don't accept that point of view.
ALITO: No, I think...
DURBIN: If an argument is made that that's how they're going to expand the power of president, as you testified today, that's not your position or your feeling -- say it in your own words.
ALITO: When I talk about the unitary executive, I'm talking about the president's control over the executive branch, no matter how big or how small, no matter how much power it has or how little power it has.
To me, the issue of the scope of executive power is an entirely different question and it goes to what can you read into simply the term executive. That's part of it.
Of course, there are some other powers that are given to the president in Article II, commander in chief power, for example, and there can be a debate, of course, about the scope of that power, but that doesn't have to do with the unitary executive.
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