Full Text: Alito on Presidential Power


Considering President Bush’s recent admission that he taped the private conversations of private citizens, it’s no surprise that presidential powers topped abortion in significance the second day of Judge Samuel A. Alito’s confirmation hearings.

The verdict on Alito’s stance on the issue remains unclear: Despite Alito’s assertions that he was only “stating the position of the administration,” Senate Judiciary Leader Arlen Specter nailed Alito for a 1986 memo in which he declared that “since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress.”

However, in response to Senator Patrick Leahy’s (D-Vermont) pointed questions, Alito stated his position clearly.

“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,” the nominee said. “It means statutes. It means treaties. It means all of the laws of the United States.”

Alito has only ruled in three cases involving presidential powers, voting against the executive only once, and has never ruled against the government in a prisoners’ rights case, and only once in an immigration case. However, he has ruled against the government in cases involving governmental regulation. Here’s a sampling of his rulings over the years.

Specter v. Garrett (1993)

Alito wrote a dissenting opinion in this case, in which the Third Circuit Court of Appeals held that a shipyard workers’ union and their supporters can enjoin the Secretary of Defense from closing the Philadelphia Naval Shipyard.

“I disagree with the court’s decision insofar as it holds that some of the challenged administrative actions are subject to judicial review . . . . As I interpret the complaint and the appellant’s brief, they seek review, not of Presidential action, but of actions taken by the named defendants, i.e., the Secretary of Defense, the Secretary of the Navy, the Defense Base Closure and Realignment Commission, and its members. Accordingly, I see no need to decide whether actions of the President are reviewable under the Administrative Procedure Act or under administrative ‘common law.’ ”

U.S. v. Rybar (1996)

Alito dissented with the court on a case where a licensed firearms dealer unsuccessfully sought to have gun charges dismissed, saying they were unconstitutional.

“The statutory provision challenged in this case . . . that generally prohibits the purely intrastate possession of a machine gun, is the closest extant relative of the statute struck down . . . which made it a federal offense knowingly to possess a firearm in a school zone. Both are criminal statutes that regulate the purely intrastate possession of firearms. Both statutes, departing from the mold of prior federal criminal statutes governing firearms possession . . . do not require federal prosecutors to prove that the firearms were possessed in or affecting interstate commerce. And in passing both statutes, Congress made no findings regarding the link between the intrastate activity regulated by these laws and interstate commerce. If [the previous statute] does not govern this case, then it may well be a precedent that is strictly limited to its own peculiar circumstances. That may be what the majority here would like . . . but our responsibility is to apply Supreme Court precedent. That responsibility, it seems to me, requires us to invalidate the statutory provision at issue here in its present form.

“This would not preclude adequate regulation of the private possession of machine guns. Needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done. Moreover, the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element—a common feature of federal laws in this field and one that has not posed any noticeable problems for federal law enforcement. In addition, as I explain below, [the statute] might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link. If, as the government and the majority baldly insist, the purely intrastate possession of machine guns has such an effect, these steps are not too much to demand to protect our system of constitutional federalism.”

Brinson v. Vaughn (2005)

Alito wrote the majority opinion granting an evidentiary hearing to a man serving a life sentence for murder and claiming racial discrimination in his jury selection.

“The pattern of strikes alleged by the defense is alone sufficient to establish a prima facie case under the circumstances present here. The Supreme Court stated that ‘a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination.’ The stark pattern here qualifies. Such a pattern, of course, does not necessarily establish racial discrimination, but particularly in the absence of any circumstance (such as a venire composed almost entirely of African Americans) that might provide an innocent explanation, such a pattern is more than sufficient to require a trial court to proceed.”

United States v. Kithcart (1998)

Alito wrote the majority opinion stating that a man who pled guilty to a gun charge could file a motion to suppress key evidence.

“The district court erred in concluding that there was probable cause to arrest and search Kithcart prior to the discovery of the guns. The mere fact that Kithcart is black and the perpetrators had been described as two black males is plainly insufficient . . . . Moreover, the match between the description of the perpetrators car . . . was far from precise.

“In sum, we think that it is clear that the facts and circumstances within [the police officer’s] knowledge at the time stopped the Nissan were insufficient to allow a prudent person to believe the car and its occupants had committed or were committing an offense.”