Focus of Hearings Quickly Turns to Limits of Presidential Power

http://www.nytimes.com/2006/01/10/politics/politicsspecial1/10legal.html?th=&emc=th&pagewanted=print

January 10, 2006
Legal Context
Focus of Hearings Quickly Turns to Limits of Presidential Power
By ADAM LIPTAK

WASHINGTON, Jan. 9 - The opinion is more than 50 years old, and it is not even binding precedent. But just minutes into the Supreme Court confirmation hearings of Judge Samuel A. Alito Jr., it took center stage and seemed to lay the groundwork for the questions he will face concerning his views on the limits of presidential power.

The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program, will plainly be a central theme when questioning of Judge Alito begins Tuesday morning.

Senator Arlen Specter, the Republican chairman of the Judiciary Committee, discussed only three decisions by name in his opening statement: Justice Jackson's concurrence in the 1952 case, Youngstown Sheet and Tube Company v. Sawyer, and two abortion cases, Roe v. Wade and Planned Parenthood v. Casey.

Quoting from the Jackson concurrence and referring to the surveillance program, Mr. Specter said, "What is at stake is the equilibrium established by our constitutional system."

Senator Patrick J. Leahy, the ranking Democrat on the committee, made a similar assertion in noting that Judge Alito would replace Justice Sandra Day O'Connor if he was confirmed. "She upheld," Mr. Leahy said, "the fundamental principle of judicial review over the exercise of government power."
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........That was a reference to Justice O'Connor's decisive opinion turning back another broad assertion of executive power in Hamdi v. Rumsfeld, a 2004 case in which the court allowed a man held without charges as an enemy combatant to challenge his detention, over the objections of the Bush administration.

"We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," Justice O'Connor wrote for herself and three other justices in 2004. She cited one case as precedent for that proposition: Youngstown.

Judge Alito, in his brief, mostly biographical opening statement, did not address Youngstown or any other case. But he did seem to nod in the direction of the current controversy. "No person in this country, no matter how high or powerful, is above the law," he said, "and no person in this country is beneath the law."

Chief Justice John G. Roberts Jr., at his confirmation hearings in September, endorsed Justice Jackson's concurrence. It has, Judge Roberts said, "set the framework for consideration of questions of executive power in times of war and with respect to foreign affairs since it was decided."......

yeah. right. whatever.

Tell that to the tens-of-thousands of non-violent recreational drug users wasting away in prison because of the so-called War on Drugs.

Tell that to all the so-called 'enemy combatants' that we're illegaly detaining around the world.

Tell that to the tens-of-thousands of innocent civillians that have died because of BushCo's so-called War on Terror.

Media focus on this over the abortion part will fare well for a more widespread public opposition to this nutjob.