On the January 12 broadcast of ABC's World News Tonight, ABC News chief Washington correspondent George Stephanopoulos cropped a clip from Supreme Court nominee Samuel A. Alito Jr.'s nomination hearing to suggest that Alito had “backed away from past statements suggesting a supremely powerful president.” But contrary to Stephanopoulos's assertion, the entirety of Alito's response illustrated that he has not, in fact, “backed away” from earlier views on executive power.
Stephanopoulos' segment featured a clip of Sen Dianne Feinstein (D-CA) asking Alito: “If we have explicit authority under the Constitution to pass a law, and we pass that law, is the president bound by that law?” Alito was then shown as replying: “The president is bound by statutes that are enacted by Congress.” However, in his full response, Alito also indicated that the president is not bound by congressional statutes when such statutes are unconstitutional. The second half of Alito's quote, which Stephanopoulos omitted, is the exception that swallows the rule: the president is bound by statute (the first half), except when he is not (the second half) -- specifically, when that statute is unconstitutional. The full quote indicates that Alito did not in any way “back[] down” from previously expressed views on executive power.
In his full response to Feinstein's question, Alito said:
The president, like everybody else, is bound by statutes that are enacted by Congress, unless the statutes are unconstitutional, because the Constitution takes precedence over a statute.
But in general, of course, the president and everybody else is bound by statute. There is no question about that whatsoever. And the president is explicitly given the obligation under Article II to take care that the laws are faithfully executed. So he is given the responsibility of making sure that the laws are carried out.
Alito's comments came in response to questioning by Feinstein on presidential authority and on the provisions of the 1978 Foreign Intelligence Surveillance Act (FISA) relevant to the current debate over the president's recently exposed authorization of warrantless surveillance in the United States in possible violation of FISA.
Referring to the cropped clip of Alito, Stephanopoulos said: “Democrats call that a platitude, but bottom line is they could not box in Alito on the big issues.” But consideration of Alito's full sentence, rather than only the part Stephanopoulos aired, demonstrates that his statement in its entirety was, in fact, a platitude -- a truism learned in the first year of law school: A president is bound only to follow statutes that Congress had the constitutional authority to pass. The statement only raises questions; it doesn't answer them. What is the scope of Congress' constitutional authority? What is the scope of the president's constitutional authority? Alito's statement says nothing about that balance of power, much less anything about his views on whether FISA unconstitutionally restricts the president.
From the January 12 broadcast of ABC's World News Tonight:
STEPHANOPOULOS: And he [Alito] backed away from past statements suggesting a supremely powerful president.
ALITO: I certainly didn't mean that literally at the time, and I wouldn't say that today. The branches of government are equal.
FEINSTEIN: If we have explicit authority under the Constitution to pass a law, and we pass that law, is the president bound by that law?
ALITO: The president is bound by statutes that are enacted by Congress.
STEPHANOPOULOS: Democrats call that a platitude, but bottom line is they could not box in Alito on the big issues. Nothing Judge Alito said here will keep him off the court or constrain him once he's on the court.
