The Royalist Alito

Sandy Levinson has some broad arguments about Alito and executive power, while Marty Lederman explains the implications of accepting the current defenses being offered of Bush’s assertions of unlimited wartime power. (To add to Lederman’s point, it’s also unclear, given their theories of executive power, why Bush’s supporters care if the PATRIOT Act is renewed or not; according to them, the act is superfluous, and to the extent that it places any restraints on Presidential authority, unconstitutional.)

In a similar vein, iocaste discusses Alito’s strange argument that the President can give an independent, legally meaningful statement about the “intent” of a statute he has signed into law. This argument isn’t as normatively disturbing as attempts to defend Bush’s illegal wiretapping; it’s an assertion of a fusion of legislative and executive power rather than a defense of arbitrary power per se. Indeed, I’m broadly sympathetic to the theory of government it represents–certainly, if I were designing a constitution I would pick a government closer to the parliamentary model than the Madisonian model, and most modern liberal democracies have gone in this direction too. Nonetheless, whatever choices we would have liked the framers to have made, this isn’t the system we have, and within the Madisonian separation-of-powers framework the concept of authoritative Presidential statements of intent is nonsensical. What Alito is advocating isn’t adapting broad constitutional principles to modern realities; it’s just a different set of principles entirely. (Shockingly, Alito isn’t really a “strict constructionist” at all! Who knew?)