Bush Picks Judge Samuel Alito for Supreme Court

1. The contention as to inherent judicial power.

Indisputably under our constitutional system the right to try offenses against the criminal laws, and, upon conviction, to impose the punishment provided by law, is judicial, and it is equally to be conceded that, in exerting the powers vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these concessions afford no ground for the contention as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a discretion to permanently refuse to do so. And the effect of the proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is legislative, and includes the right in advance to bring within judicial discretion for the purpose of executing the statute elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment fixed by law and ascertained according to the methods by it provided, belongs to the executive department [via the power to pardon].

The proposition might well be left with the demonstration which results from these considerations, but the disregard of the Constitution which would result from sustaining the proposition is made, if possible, plainer by considering that, if it be that the plain legislative command fixing a specific punishment for crime is subject to be permanently set aside by an implied judicial power upon considerations extraneous to the legality of the conviction, it would seem necessarily to follow that there could be likewise implied a discretionary authority to permanently refuse to try a criminal charge because of the conclusion that a particular act made criminal by law ought not to be treated as criminal. And thus it would come to pass that the possession by the judicial department of power to permanently refuse to enforce a law would result in the destruction of the conceded powers of the other departments, and hence leave no law to be enforced.

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4. The duty to recognize the power as lawful because of its exertion in practice by the state and Federal courts, and the implications arising therefrom. . . .

. . . Albeit this is the case, we can see no reason for saying that we may now hold that the right exists to continue a practice which is inconsistent with the Constitution, since its exercise, in the very nature of things, amounts to a refusal by the judicial power to perform a duty resting upon it, and, as a consequence thereof, to an interference with both the legislative and executive authority as fixed by the Constitution. The fact that it is said in argument that many persons, exceeding two thousand, are now at large who otherwise would be imprisoned as the result of the exertion of the power in the past, and that misery and anguish and miscarriage of justice may come to many innocent persons by now declaring the practice illegal, presents a grave situation. But we are admonished that no authority exists to cure wrongs resulting from a violation of the Constitution in the past, however meritorious may have been the motive giving rise to it, by sanctioning a disregard of that instrument in the future. On the contrary, so far as wrong resulting from an attempt to do away with the consequences of the mistaken exercise of the power in the past is concerned, complete remedy may be afforded by the exertion of the pardoning power; and, so far as the future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means as the legislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet, by the exercise of an enlarged but wise discretion, the infinite variations which may be presented to them for judgment, recourse must be had to Congress, whose legislative power on the subject is, in the very nature of things, adequately complete.

I'm watching the rebroadcast of today's hearing.

Under questions posed by Senator Kennedy, Judge Alito has explained his understanding of "UNITARY executive branch" as meaning that the executive power is vested in the presidency to "take care that the laws are faithfully executed." Alito states this is a matter of FUNCTION (meaning, it is the FUNCTION of Congress make the laws; it is the FUNCTION of the President--as the head of the executive branch--to enforce the laws). Thus far (much to my relief if Alito is forthcoming in his view), it does not appear that Alito subscribes to the notion that the "unitary executive branch" theory gives the president the right to refuse to perform his FUNCTION to faithfully execute laws when the president believes the duly enacted law interferes with his OTHER FUNCTION as the commander-in-chief.

Did anyone else hear that part? Is that how YOU understand Alito's response?

ALITO: Well, Senator, let me explain what I understand the idea of the unitary executive to be. And I think there has been some misunderstanding, at least as to what I understand this concept to mean. I think it is important to draw a distinction between two very different ideas. One is the scope of executive power. Often presidents -- or occasionally presidents -- have asserted inherent executive powers not set out in the Constitution. We might think of that as, you know, how big is this table, the extent of executive power. The second question is: When you have the power that is within the prerogative of the executive, who controls the executive? Those are separate questions. The issue of, to my mind, the concept of the unitary executive, does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president.

ALITO: Now, the power that I was addressing in that speech was the power to take care that the laws are faithfully executed, not some inherent power but a power that is explicitly set out in the Constitution.

KENNEDY: Would that have any affect or impact on independent agencies?

ALITO: The status of independent agencies I think is now settled in the case law. This was addressed in Humphrey's Executor way back in 1935 when the Supreme Court said that the structure of the Federal Trade Commission didn't violate the separation of powers and that it was revisited and reaffirmed in Wiener v. the United States in 1958.

KENNEDY: So your understanding of any unitary presidency, that they do not therefore have any kind of additional kind of control over the independent agencies than has been agreed to by the Congress and signed into law at the prior time?

ALITO: I think that Humphrey's Executor is a well-settled precedent. What the unitary executive I think means now, we would look to Morrison I think for the best expression of it. And it is that things cannot be arranged in such a way that interfere with the president's exercise of his power on a functional -- taking a functional approach.

While I dont think the President can ignore the law,he can,as far as I understand,determine what the law means.

Its called a "presidential finding,and that is basically the president legally determining what the law means.

While I dont think the President can ignore the law,he can,as far as I understand,determine what the law means.

Its called a "presidential finding,and that is basically the president legally determining what the law means.

Really guys & gals?

He's highly coached, as are all Supreme Court nominees. What makes you think he is answering truthfully?

Webpage TitleI Would Like Some Input On These Claims

Really guys & gals?

He's highly coached, as are all Supreme Court nominees. What makes you think he is answering truthfully?

Webpage TitleI Would Like Some Input On These Claims

mysteryman wrote:

While I dont think the President can ignore the law,he can,as far as I understand,determine what the law means.

Its called a "presidential finding,and that is basically the president legally determining what the law means.

I don't know. The president cannot determine that a law means something other than Congress's intent, or else he is infringing on their authority to legislate. All laws are subject to interpretation, but if a president disagrees with legislation then he ought to veto it, not change it via interpretation into something that he does agree with.

I thought it was the judicial branch that had the authority to interpret law, but I'll have to go re-read the constitution to be sure.

In these cases the Administrator's [EPA's] interpretation [of the specific provision at issue in the Clean Air Act] represents a reasonable accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex,[Footnote 39] the agency considered the matter in a detailed and reasoned fashion,[Footnote 40] and the decision involves reconciling conflicting policies.[Footnote 41] Congress intended to accommodate both interests, but did not do so itself on the level of specificity presented by these cases. Perhaps that body consciously desired the Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency. For judicial purposes, it matters not which of these things occurred.

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices - resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges - who have no constituency - have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches." TVA v. Hill, 437 U.S. 153, 195 (1978).