A revealing statement came in November 2000 when Alito spoke at a Federalist Society meeting, reflecting on his time in the Reagan administration.
"We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president," Alito said. "And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure."
For The Record
Los Angeles Times Friday January 27, 2006 Home Edition Main News Part A Page 2 National Desk 1 inches; 54 words Type of Material: Correction
Presidential power -- A Jan. 8 Section A article about presidential power said President Bush's lawyers did not explain why the National Security Agency did not seek warrants before eavesdropping on people in the U.S. in suspected terrorism cases. Administration officials have given several reasons, including a need to act with "speed and agility."
In a sense, the "unitary executive" theory states the obvious. There is only one president. But many of its Reagan-era proponents applied this theory to say independent government agencies were unconstitutional because they were not under the direct control of the president.
Since the New Deal of the 1930s, Congress has created such independent agencies to regulate certain industries. The agencies include the Securities and Exchange Commission, which regulates the stock market; the Federal Communications Commission, which regulates broadcasters and the telecommunications industry; and the Federal Election Commission, which regulates campaigns. The most influential independent body may be the Federal Reserve Board, which regulates banking and the money supply.
Alito did not say whether he believes such independent agencies violate the Constitution, but senators say they intend to ask him about how he would apply the unitary executive theory.
Neil Kinkopf, a law professor at Georgia State University in Atlanta who served in the Clinton administration, said he hoped the senators would ask Alito about the president's power to shape the law through the use of bill-signing statements.
Kinkopf described Bush's statement on the McCain amendment as "cryptic, but ominous. It threatens our basic constitutional structure if the executive can make the law in the guise of executing the law," he said.
But Alito's supporters say it is unfair to link his Reagan-era memos to the current controversies.
"In every administration -- Democratic and Republican -- the lawyers believe in a robust understanding of the president's powers," said Charles J. Cooper, who recruited Alito in 1986 to be his deputy director to his legal staff under Atty. Gen. Edwin M. Meese III. "That doesn't begin to answer the legal separation-of-powers question he would face as a justice. And his habit of mind is to be careful, neutral and very balanced."
Another big issue probably facing Alito at this week's hearings is abortion.
Sen. Arlen Specter (R-Pa.), the Judiciary Committee chairman, is a supporter of abortion rights, and he said he was troubled to learn in November that Alito had voiced strong opposition to Roe vs. Wade, the ruling that legalized abortion nationwide.
In 1985, Alito filed a job application with the Reagan White House in which he said he was "particularly proud" of the role he had played in the administration's effort to persuade the Supreme Court "that the Constitution does not protect a right to abortion."
This forthright statement will make it hard for Alito to avoid discussing his views on abortion. In September, then-nominee John G. Roberts Jr. steered around the topic by asserting that he was simply a lawyer representing his client when he served in the Reagan and George H.W. Bush administrations.
By contrast, Alito's memo made clear that he agreed with the Reagan administration's public position that Roe vs. Wade should be overruled.
That effort to overturn the ruling ultimately fell short by one vote when two Reagan appointees -- Justices Sandra Day O'Connor and Anthony M. Kennedy -- joined a 5-4 majority to affirm the abortion right in 1992.
If confirmed, Alito would succeed O'Connor.
