Blue Mass Group

Reality-based commentary on politics.

Thanks, Pat

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Finally, someone asked the question I’ve been waiting for.  Sort of.  Today, this exchange occurred between Sen. Pat Leahy (D-Vt.) and Judge Alito:

ALITO: If a statute is unconstitutional, then the Constitution would trump the statute. But if a statute is not unconstitutional, then the statute is binding on the president and everyone else.

LEAHY: But does the president have unlimited power just to declare a statute — especially if it is a statute he had signed into law — to then declared that unconstitutional, and he’s not going to follow it?

ALITO: If the matter is later challenged in court, of course, the president isn’t going to have the last word on that question. That’s for sure. And the courts would exercise absolutely independent judgment on that question. It is emphatically the duty of the courts to say what the law is when constitutional questions are raised in cases that come before the court.

LEAHY: Now, that is an answer I agree with. Thank you.

Well, this is at least a little bit reassuring.  President Bush, it seems, would like his view on a law’s constitutionality to be the determinative one.  Alito says no, the judiciary actually gets the last word on that.  It’s not much, but it’s something.  We’ll take what we can get on this one.

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Comments

  1. That’s almost there, but not quite.  What scares me most about Alito is exactly this issue.  I think that, in most such cases, his opinion is that the courts have full independent jurisdiction to decide… that the President has the right to violate just about any statute he feels like when he can justify it with some executive privilege argument.  I doubt Alito would put it that way, and he certainly wouldn’t say so to the Senate.  He’d say that the courts get to decide, and should look at each case individually.  When such a case came up, then in almost every case, he’d decide that the President was justified.

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    The answer I would have wanted would have explained that no, the president does not have the right to set aside statute, except in cases where he knows Congress didn’t have authority to make law restricting his actions in that particular field.  He would know that /after/ a court has looked at it, or has precedent looking at something very similar.  The President doesn’t get to decide to set aside the law beforehand and then hope a court will rule in his favor.

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    But I fear that’s one of the main reasons Bush chose Alito – so he could do exactly that.

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