Liberal Oasis has managed to finally clear up the confusion today with new insights provided from Alito memos when he worked in the Reagan Administration. The link between Alito and Bush's view of executive authority become much more clear in light of these revelations.
That is Bush’s signing, last Friday, of the bill which included what’s known as the McCain Amendment, banning torture of detainees.
As Balkinization and MyDD have noted, Bush included a “signing statement” along with the bill, which read in part:The executive branch shall construe [the provision] 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, which will assist in achieving the shared objective of the Congress and the President ... of protecting the American people from further terrorist attacks.
As Balkinization said, “Translation: I reserve the constitutional right to waterboard when it will ‘assist’ in protecting the American people from terrorist attacks.”
Or as MyDD said: “I'm the President, and you can't enforce jack.”
Wait a second, you might say, what the hell is a “signing statement” anyway?
It’s a concept cooked up by Sam Alito, back when he was in the Reagan Justice Department, to diminish the weight of the congressional record and increase the weight of the president’s whims when the Supreme Court interprets the law.
Bush is a big fan of Alito's signing statements, though as the W. Post noted, the Supreme Court has not given them nearly as much weight as congressional debate when determining a law’s intent.
Signing statements, that's the link. A way for the President to bypass Congressional mandates that has been given little wieght by the Supreme Court, one which Alito cooked up and Bush hopes to give weight on the High Court that it has never possessed. While I had continued to weakly follow the executive power argument before, I am once again convinced, this is all about executive power. Bush sees the Constitution as it has been interpreted in recent years to be an obstacle to the war on terror, and seeks to expand his own authority by stacking the Supreme Court with executive power judges. This is the primary issue that should be talked about in the committee hearings, not to say that other things are unimportant, but because this is the most threatening aspect of Bush's Supreme Court agenda, and Mr. Alito.