The Illusion of Democratic Resistance

    I was watching the Alito confirmation hearings today on C-SPAN and saw something that really bothered me. Senator Joe Biden decided to ask Alito about his views on executive power, specifically whether or not the President had the right to declare war without congressional authorization. Now we're not talking about responding to an imminent threat in which an urgent response is necessary for protection, we're talking about large-scale, prolonged war. And if Alito had come right out and said that he believed the President had this authority I wouldn't have been shocked at all. After all, the right has been pushing these ideas for awhile now and in some sense I understand the position. I mean, in a fascist theocracy of course the Leader should be able to commit the poor to die without consulting the Congress. And let's be honest, most of the elected politicians serve the same masters as the President does, so it's probably just a waste of time to go through the formalities.

    Later on Biden said the following

BIDEN: The administration argues we could pass a resolution saying that, "You have no authority to invade Iran," and the president could the next day invade Iran. Our only recourse would be to cut off appropriations.

But, as you know, there's no way to cut off specific appropriations. You have to cut off appropriations for the entire military, which means it's a totally useless tool for the Congress in today's world. You know?

You can't say, well, I'm going to cut off only the money for the oil that allows the steaming of the ships to get from the East Coast to the Mediterranean sea and/or to the Persian Gulf.

So it's really kind of important, whether or not you think the president does not need the authority of the United States Congress to wage a war where there's not an imminent threat against the United States. And that's my question.

ALITO: And, Senator, if I'm confirmed and if this comes before me -- or perhaps it could come before me on the Court of Appeals -- the first issue would be the political question doctrine that I've described.

But if we were to get beyond that, what I can tell you is that I have not studied these authorities and it is not my practice to just express an opinion on a constitutional question...

BIDEN: OK.

ALITO: ... Including particularly one that is as momentous as this. I've set out my understanding of what the Constitution does in allocating powers relating to war between the executive and Congress, and some of what some of the leading authorities have said on this question. But beyond that -- and I haven't read Professor Yoo's book or anything that he's written on this issue -- I would have to study the question.

BIDEN: I thank you.

    So now Biden has asked him about the scenario when the Congress would preemptively tell the President "no, you may not invade this country" and the President still does. Alito does what he's done on all issues (to be fair, all recent SC nominees do this) and simply refused to answer the question in any meaningful way. He would have to "study the question". As absurd as I think this is, I think the biggest problem is Biden's response. "OK". WHAT? He just said that it's not obvious to him that if the elected representatives of the people tell the president beforehand that he can't declare war on a certain country, that the president might still be able to! And all you've got is OK? Maybe it's just me, but this seems like something that Biden could have pursued harder. to say the least. This is something that I think a decent fraction of the American people would respond to if it were mentioned on the news. And there's no way in hell it's going to be mentioned if Biden doesn't make a big deal about it. But hey, I understand, you're running for President in 2008. Better keep your eyes on the prize. Once you've got that maybe you'll worry about defending the people.