Thursday, December 29, 2005

Is Alito Just Another Cog In King George's Powergrab?

Sanford Levinson, over at Balkinization, argues that Alito was chosen not just because he wants to overturn Roe v. Wade and because he favors a less expansive definition of the Establishment Clause, but because he supports almost plenary power for the President in his guise as Commander-in-Chief.

Of course I wasn't privy to the discussions among the President and his advisors, so I can't comment on why Alito was nominated. What I can say is that I disagree with Levinson's assertion that the Bush administration is attempting to stack the Court so it can acquire absolute power. What Bush and Cheney favor is not unlimited power, but a return the days before executive power was curtailed.

The President clearly has powers by virtue of being Commander-in-Chief. How those powers interact with Congress' ability to regulate war and with the Bill of Rights is an important question. But the President is not arguing for unlimited power; he merely wants to resuscitate executive power. Where the President's actions do not clearly violate the Constitution (as in the case of the wiretaps) or a Congressional statute (less clear in wiretaps), it would make sense for the courts to allow him to exercise his power. I don't see this as a power-grab, but as a necessary element of fighting the war on terror.

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