What If We Faced A Constitutional Crisis & Hardly Anyone Noticed?

What if we faced a constitutional crisis and hardly anyone noticed? As he quietly mastered the tiresome cat-and-mouse game inside the Senate Judiciary Committee last week, Judge Samuel Alito gave few hints of where he stood on a matter that goes to the heart of what it means to live in a republic. With a few exceptions, the media coverage didn't help. It's so much easier to talk about Joe Biden's big mouth or a right-wing Princeton alumni group or Mrs. Alito's tears than to figure out how the country should prevent a president of the United States from castrating the United States Congress.

I wasn't expecting Alito to say whether he thought that President Bush broke the law when he admitted authorizing warrantless wiretaps on American citizens, which is a clear violation of the 1978 Foreign Intelligence Surveillance Act (FISA). Alito is right not to comment on a specific case that, with any luck, will soon go rocketing toward the Supreme Court. I can even understand why he failed to offer an opinion on why Bush didn't simply seek to amend FISA (which Congress would have eagerly done after 9/11) if he believed his tools for catching terrorists were insufficient.

Even so, the nominee's "no person is above the law" platitudes did not suffice. Alito endorsed a famous 1952 concurring opinion from Justice Robert H. Jackson that the president's power is at its "lowest ebb" when he operates without congressional authority (the case involved whether President Truman could seize steel mills during the Korean War). But we never heard whether the brainy New Jersey jurist believes (like Bush) that the Constitution entitles the president to break the law in wartime.

Remember, this is not about whether it's right or wrong to wiretap bad guys, though the White House hopes to frame it that way for political purposes. Any rational person wants the president to be able to hunt for Qaeda suspects wherever they lurk. The "momentous" issue (Alito's words) is whether this president, or any other, has the right to tell Congress to shove it. And even if one concedes that wartime offers the president extra powers to limit liberty, what happens if the terrorist threat looks permanent? We may be scrapping our checks and balances not just for a few years (as during the Civil War), but for good.

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