10 Jan Alito and Presidential Authority under Youngstown
“LEAHY: Now, three years ago, the Office of Legal Counsel at the Justice Department — and you’re familiar with that; you worked there years ago — they issued a legal opinion, which they kept very secret, in which it concluded that the president of the United States had the power to override domestic and international laws outlawing torture. So the president could override these laws outlawing torture. They tried to redefine torture, and they asserted, I quote, “that the president enjoys complete authority over the conduct of war,” close quote. And they went on further to say that if Congress passed criminal law prohibiting torture, quote, “in a manner that interferes with the president’s direction of such core matters as detention and interrogation of enemy combatants, that would be unconstitutional.” They seem to say that the president could immunize people from any prosecution if they violated our laws on torture. And that stated as what was the legal basis in this administration until somebody, apparently at the Justice Department, leaked it to the press. It became public. Once it became public — the obvious reaction of Republicans, Democrats, everybody saying this is outrageous; it’s beyond the pale — the administration withdrew that as its position. The attorney general even said in his confirmation that this no longer — no longer — represented Bush administration policy.
LEAHY: What is your view now? And I ask this because the memo has been withdrawn. It’s not going to come before you. What is your view of the legal contention in that memo that the president can override the laws and immunize illegal conduct?
ALITO: Well, I think the first thing that has to be said is what I said yesterday, and that is that no person in this country is above the law. And that includes the president and it includes the Supreme Court. Everybody has to follow the law, and that means the Constitution of the United States and it means the laws that are enacted under the Constitution of the United States. Now, there can be — there are questions that arise concerning executive powers. And those specific questions have to be resolved, I think, by looking to that framework that Justice Jackson set out, that I mentioned earlier.
LEAHY: Well, let’s go into one of those specifics. Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress and immunize people under his command from prosecutions that they violate, these laws passed by Congress?
ALITO: Well, if we were in — if a question came up of that nature, then I think you’d be in — where the president is exercising executive power in the face of a contrary expression of congressional will through a statute or even an implicit expression of congressional will, you’d be in what Justice Jackson called the twilight zone, where the president’s power is at its lowest point.
ALITO: And I think you’d have to look at the specifics of the situation. These are the gravest sort of constitutional questions that come up. And very often there they don’t make their way to the judiciary or they’re not resolved by the judiciary; they’re resolved by the other branches of the government.
LEAHY: But, Judge, I’m a little bit troubled by this because you said yesterday — and I completely agreed with what you said — that no one’s above the law; no one’s beneath the law. You’re not above the law. I’m not. The president’s not. But are you saying that there are chances where the president not only could be above the law passed by Congress but could immunize others, thus putting them above the law? I mean, listen to what I am speaking to specifically. We pass a law outlawing certain conduct. The president, this Bybee memo — which has now been withdrawn — was saying, “But that won’t apply to me or people that I authorize.” Doesn’t that place not only the president but anybody he wants above the law?
ALITO: Senator, as I said, the president has to follow the Constitution and the laws. And, in fact, one of the most solemn responsibilities of the president — and it’s set out expressly in the Constitution — is that the president is to take care that the laws are faithfully executed, and that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States. But what I am saying is that sometimes issues of executive power arise, and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone, and they have to be decided when they come up based on the specifics of the situation.
LEAHY: But is that saying that there could be instances where the president could not only ignore the law but authorize others to ignore the law?
ALITO: Well, Senator, if you’re in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics.
LEAHY: Let’s assume there’s not a question of the constitutionality of an enactment. Let’s make it an easy one. We pass a law saying it’s against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon?
ALITO: Neither the president nor anybody else, I think, can authorize someone to — can override a statute that is constitutional. And I think you’re in this area — when you’re in the third category, under Justice Jackson, that’s the issue that you’re grappling with.
LEAHY: But why wouldn’t it be constitutional for the — or wouldn’t it be constitutional for the Congress to outlaw Americans from using torture?
ALITO: And Congress has done that, and it is certainly — it is certainly an expression of the very deep value of our country.
LEAHY: And if the president were to authorize somebody or say they would immunize somebody from doing that, he wouldn’t have that power, would he?
ALITO: Well, Senator, I think that the important points are that the president has to follow Constitution and the laws, and it is up to Congress to exercise its legislative power. But as to specific issues that might come up, I really need to know the specifics. I need to know what was done and why it was done and hear the arguments of the issue.”
“3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
So does Alito have a narrower view of executive authority than is traditionally attributed to that branch under the third prong? I know Leahy wanted Alito to presume the statute was constitutional, which presumably meant Congress was acting within its enumerated powers. To which Alito responded that in such a case the President must comply with the statute. Is that correct? Even on matters that are part of inherent (not delegated) executive authority but overlap with concurrent authority of the legislative branch? I always thought this meant what it said, that the President’s power is at “its lowest ebb,” but not non-existent. I would be curious what others who are Youngstown experts think.
After I posted this I just noticed that Case Western’s Jonathan Adler has an interesting post here that addresses this topic: “As Justice Jackson’s Youngstown Steel opinion made clear, the President’s authority is at it lowest ebb when the President acts contrary to a Congressional enactment, but it is not reduced to zero. For instance, I think most would agree that Congress could not use legislation to direct tactical troop movements in the course of a military campaign. Not only would this be impractical, but it would be an unconstitutional infringement on Presidential power. This does not mean the President is “above the law.” Rather, it means that the law — as embodied in the Constitution — recognizes that not all executive authority is subject to Congressional constraint. Judge Alito is unlikely to say this directly — as his Senate questioners would not like to hear that their power is limited — but that does not make it any less so.”