No One Is Above The Law?
Here's a scary thought that I first heard from Jeffrey Rosen on NPR tonight.
If Alito thinks that the president has the power to, in effect, determine what is and isn't law then both of the following would be true:
(a) The president is not above the law
(b) The president can do whatever he wants
If this view of executive power were true, then the president's power would be unlimited (or virtually so) even though he would, technically speaking, not be "above the law." What we really want to know is how expansive Alito thinks presidential power is, and someone needs to ask him that question and not let him get away with "no one is above the law."
I wasn't so obsessive about such things before Bush said "there are no plans to invade Iraq on my desk." But now we know we can't cut them any slack or give them the benefit of any doubt.
Here's a scary thought that I first heard from Jeffrey Rosen on NPR tonight.
If Alito thinks that the president has the power to, in effect, determine what is and isn't law then both of the following would be true:
(a) The president is not above the law
(b) The president can do whatever he wants
If this view of executive power were true, then the president's power would be unlimited (or virtually so) even though he would, technically speaking, not be "above the law." What we really want to know is how expansive Alito thinks presidential power is, and someone needs to ask him that question and not let him get away with "no one is above the law."
I wasn't so obsessive about such things before Bush said "there are no plans to invade Iraq on my desk." But now we know we can't cut them any slack or give them the benefit of any doubt.
posted by Winston Smith at
9:02 PM
2 Comments:
Alito did say that the Bill of Rights has to be respected, and especially in a time of war since that's when there is the most temptation to abuse it. Of course, we still have no idea what that means. Is the President's domestic spying program a violation of the 4th Amendment? It seems to be, but even if it is, a lot of conservatives don't seem to care and would do anything to portray the President's actions as legal. So I'm not inclined to trust Alito when he says no one is above the law. For what it's worth, I think we're seeing that both of those propositions you mentioned are indeed becoming blurred. But a lot of people don't seem to care so long as what Bush is doing makes them feel secure. But how long a leash will they give him?
Your formulation of Alito's reasoning is exactly correct. And it is that dangerous. At least that dangerous.
Does anyone think that someone like Alito (or any half-assed lawyer) explains such situations in a particular way for no reason? There is always a reason. Your synthesis of the proposition is exactly correct, the president is never above the law because he (according to Alito) can create, change, modify, or ignore the law because he is the president. Or at least this president.
At the (very high and very appropriate risk) of sounding pompous....this is what lawyers do, and we do it for a reason. We use words to either create or destroy ambiguity. It is all we have, it is our stock in trade, it is, to tell the truth, what makes us lawyers. We ain't smarter, more learned, or fundamentally in touch with what the Constitution says, requires, or prohibits. We simply know the language and how to treat it.
If I request you to produce your bank records, I will say something in legalese along the lines of "including but not limited to check registers, cancelled checks (front and back), electronic banking records, bank statements, personal financial notes, electornic data in any form (including but not limited to internet accounts, Quicken Accounts, Microsoft Money accounts or other electronic financial information), correspondence, handwritten ledgers and any and all other forms of financial records." I will also include language that states my request should be construed broadly and that all information that might fall into its purview be produced. You don't produce it, I will get sanctions against you.
If you ask me to produce my check register, with nothing more, and I bank online and don't receive statements, you ain't going to get jack from me, because you didn't ask for it. I know what you meant, but you failed to use the right words. A sick game in many ways, but that's the game.
That's what lawyers do, for better or worse. And that's what Alito is doing. So yes, the president is not above the law, but he gets to say what the law is.
On a related note, that's why lawyers in congress (sometimes) write better legislation than others, because they freakin' create or eliminate ambiguities on purpose, not by accident. It's the accidents that really screw things up because if you don't have lawyers at the beginning, you will have them later on twisting the words to mean some really, really crazy things.
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