Alito on Changing Constitutional Intent and the Unitary Executive Theory

January 23, 2006

By KJ Meyer- Editor-at-Large
While much of the debate during Judge Samuel Alito's recent confirmation hearings focused around the divisive issue of abortion, the larger long-term implications of his affirmation to the Court may come in a significant shift of the power balance between the three branches of government. Throughout his hearings, senators repeatedly questioned Alito on his public support of a relatively obscure political concept known as the Unitary Executive Theory (UET). UET is based on an interpretive method known as "departmentalism" or "coordinate construction" which argues that all three branches of government, not just the Supreme Court, determine constitutional interpretation. This lies in contrast to the long held status of the Court as umpire of determining constitutional interpretation through the process of judicial review. In its acute form, UET promotes nearly absolute deference to the executive by both Congress and the Judiciary.
Described by Senator Durbin (D-IL) as a "marginal theory at best", the Boston Globe reports that "adherents have invoked it to argue for giving the president increased powers, including authority to withhold information from Congress; to take secret actions without telling Congress; and to take control of independent agencies." In past speeches to the Federalist Society, Alito has said he was a strong supporter of the theory of the unitary executive and believes that the Constitution gives the president 'not just some executive power, but the executive power -- the whole thing."
The primary place where the UET has cropped up is in presidential signing statements that are attached by the president to executive orders and legislation. In the case of legislation, these signing statements accompany the congressional record which is often used by courts to determine intent when the courts are forced to interpret a legislative act.
The total number of signing statements ever issued up through the Clinton administration totaled 322. Jennifer Van Bergen, at FindLaw, writes that "President Bush issued 435 signing statements in his first term alone." At Raw Story, Van Bergen says that "According to Dr. Christopher Kelley, a professor in the Department of Political Sciences at Miami University, as of April 2005, President Bush had used the "unitary executive" doctrine 95 times when signing legislation into law, issuing an executive order, or responding to a congressional resolution."
In a very recent example, President Bush, in signing the broad based bipartisan torture legislation outlawing torture by US officers and sponsored by Senator McCain, issued a Presidential signing statement asserting that his Commander-in-Chief powers give him the right to override the law when he sees fit in accordance with the Unitary Executive Theory.

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power (emphasis added).

What's perhaps most notable about Judge Alito's confirmation is that he was one of the original advocates of using these presidential signing statements during the Regan administration as a way to begin introducing executive intent along with legislative intent into the Congressional record. He based this argument on the fact that since the President ultimately had to sign a bill into law, his intent was just as important Congress's. If Judge Alito gets confirmed, it may be that he will be able to begin citing the very signing statements he advocated to start using in the first place during the Regan Administration.