One of the more curious lines of questioning during the Alito hearings was on the "Unitary Executive." Some Democrats seemed to think that this was the equivalent of a secret handshake among conservatives out to destroy the constitution.

Exhibit A of this conspiratorial mindset is an article by Jeffrey Rosen in the New Republic. (Unfortunately, the full piece is subscription only). I single out Rosen because he is generally smart and fair, and the New Republic equally so - making the attacks all the more curious.

Analysis below the fold...

Take this:

In his confirmation hearings, Alito said he had never read [Professor John] Yoo's writings or those of "anyone else" who had defended the broad theory of unitary executive power during wartime. Given the prominence of these arguments, Alito's claim seems surprising at best.

Is this really surprising? I would be surprised if a busy Court of Appeals judge had read Yoo's writings. Sad but true - people in policy positions don't read law review articles. Heck, John Yoo is a friend of mine, and I've not read his wrigints on such a theory of the Unitary Executive. And for what it's worth - while I might think Alito would be more knowledgeable than I - Until this recent little flap about Alito's alleged hidden agenda, I'd never heard the unitary executive used as Rosen uses it. Rather, like Alito, I understood it to be a theory about control of independent agencies. And if we take Alito at his word, that that is what he means, then it is surely a good thing, I think, that he believes in the unitary executive. To me, this is one of the biggest pluses for Alito. Independent agencies, such as the FEC, I think ought to be abolished. They are unaccountable to either Congress or the President, and hence fundamentally undemocratic and unconstitutional. Rosen, OTOH, adopts classic conspiracy theory reasoning - if Alito says "no, what you say is not what I meant," it's proof he means "yes."

In other words, Alito claims to understand the theory as a way of asserting the president's ultimate ability to control or to fire executive branch officials. When Senator Richard Durbin asked Alito if he agreed with Thomas's view that a wartime president has inherent powers beyond those explicitly given to him by Congress, Alito replied, "I don't think that the unitary executive has anything to do with that."
Alito was either confused or being less than candid.

Why? That's my understanding. Look, I go to lots of these Federalist Society events, and I guarantee you that when people speak of the unitary executive, they speak of it as Alito is. I suppose there may be those who interpret as Rosen does, but I've not heard them. Perhaps it is Rosen who is confused, or less than candid (I think the former).

Asked by Durbin whether he agreed with Thomas's dissent, Alito's memory again failed him. "I don't recall that Justice Thomas uses the term 'unitary executive' in his dissent," Alito said. "It doesn't stick out in my mind that he did. If he did, he's using it there in a sense that's different from the sense in which I was using the term." Once again, either Alito was ill-prepared or he was being deliberately evasive.

Really? It's "ill prepared" not to recall that that Thomas does use the term (all of twice, both times with no elaboration) in Hamdi? Or is it "evasive" to suggest that Thomas was "using it there in a sense that's different from the sense in which I was using the term."? Maybe it's just the truth. By the way, you can find Thomas's use of the term at 542 U.S. 580. Read it and tell me if Thomas is using it quite as Rosen says. Yes, Thomas's opinion is more or less as Rosen says, but the "unitary executive" seems to have little to do with it. It is a descriptive label more than a theory. Thomas begins by defending executive power, and then argues that this is good because of the advantages of a "unitary executive" in foreign affairs. I would be a bit surprised, frankly, if anyone disagreed with Thomas on this, even though they could and would still disagree on the ensuing extent of presidential power. That is, a good liberal could take the paragraph in which Thomas mentions the "unitary executive," and begin the next paragraph, "Nevertheless... " and write a very different opinion.

Alito said he was merely discussing "theoretical problems," adding, "I don't see any connection between the concept of the unitary executive and the weight that is--that should be given to signing statements in interpreting statutes."

Bingo! Indeed, it seems to me that Rosen is the one being disingenuous, in suggesting that the weight a justice might give to a presidential signing statement relates to the content of the statement. I mean, I suppose it does in the sense that a good signing statement would be more persuasive than a bad one, but as a theoretical matter it makes no difference.

Rosen ends by noting that another believer in the unitary executive, Judge Luttig, does not interpret it in the sweeping way Rosen interprets it. Hardly a convincing case, then.

It may be that Alito would give a strong interpretation to executive power, but Rosen's conspiracy theory weakens, not strengthens, his case. Sort of like old Birchers railing against the Tri-lateral Commission.

It might have been very useful to have the Senators grilling Alito on his views of presidential power in wartime. But this "unitary executive" line of assault was just sort of wierd. My little hypotheses: 1) some bright legal staffer, two years out of an elite law school, came up with it and thought he really had something, and Democratic Senators, being generally unprepared and intellectually baffled, just read the questions; or 2) Democrats inherently realized that whatever we might think, the public was likely to side with the President on this (as we see, for example, that most people are non-plussed about wiretapping); hence best not to attack the actual events, but to try to put an obscure, and thus vaguely scary, conspiratorial name on it.

Rosen is a smart guy, and he raises a very important issue, but his attack misses the mark. Whether that is because it was a poorly launched assault, or because he's just wrong, or both, I'll leave you to judge.