Date: January 12, 2006
Senator: Biden
Topic:
Contents
SPECTER: Senator Biden has asked for 20 minutes. We're going to be a little more flexible this final round because I see light at the end of the tunnel, quite frankly. I see our conclusion of these hearings probably not tonight, but tomorrow not too late.
We've started all the sessions exactly on time, and we've held to the time limits up until now, which I think we have to do if we want to move ahead.
If you want start to slip on when you start the timing it just gets out of hand, but at this juncture on a final round, we have a little more flexibility. I see the light at the end of the tunnel.
SPECTER: And, Senator Biden, you're recognized for up to 20 minutes, as you have requested. And if you go a little more, my gavel will stay put.
BIDEN: Well, thank you, Mr. Chairman. I'll try not to.
Judge, I heard the chairman -- and I happened to be doing something on Darfur. And I was in the conference room and I heard the chairman say that -- which I agree; he and I have talked about this -- nominees tend to answer as many questions as they think they have to in order to get confirmed. And I would say that that's been the case with all nominees, basically, since Judge Bork.
I'd also add another, I think, truism that's developed is they tend to answer controversial questions in direct proportion to how much they think the public is likely to agree with them.
And it all goes to, kind of, a central point here is: What is the public entitled to know about what you think, or what anyone thinks, before they go on the court?
And I realize there's this dynamic tension between your independence as a nominee, wand to be an independent justice, and answering questions.
But having said that, let me go to an area that I hope you'll engage me in. And it goes to executive power.
I have had the dubious distinction, because of my role in the Judiciary Committee and on the Foreign Relations Committee, in the last three or four times forces have been used by a president, to be the guy in charge of -- at least on my side of the aisle -- drafting or negotiating the drafting of the authority to use force, whether it was President Clinton, before that President Bush and even before that the discussion back on Lebanon, with President Reagan, et cetera.
So it's something I've dealt with a lot. Doesn't mean I'm right about it, but I've thought a lot about it.
And now there is a school of thought that's emerging within the administration that is making -- not illegitimate -- an intellectually thought-out claim that the power of the executive in times of war exceed that of what I would argue a majority of the constitutional scholarship has suggested.
BIDEN: And the fellow -- a very bright guy -- who is referred to as the architect of the president's memorandum on the ability of the presidents to conduct military operations against terrorists and nations supporting them is Professor Yoo.
He's written a book called "The Powers of War and Peace." And he makes some claims that are relatively new among the constitutional scholars in his book. And he had urged, when he was at the administration, the president had these authorities.
For example, he says that, "The framing generation well understood that declarations of war were obsolete." He goes on to say, "Given this context, it's clear that Congress' power to declare war does not constrain a president's independent and plenary right, constitutional authority over the use of force."
And he goes on and he argues, as you well know this argument -- I mean, not from your court, just as an informed, intelligent man -- there's a great debate now of whether or not the administration's internal position is correct. And that is, the president has the authority to go to war absent congressional authorization.
And it was a claim made by Bush I and then dropped. Bush I argued that the only reason the declare war provision is in the Constitution is to give the president the authority to go to war if the president didn't want to. That was the claim made.
Similar claim made here, so I want to ask you a question.
Do you think the president has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there's an immediate threat to our national security?
ALITO: Well, that's a question that I don't think is settled by -- the whole issue of the extent of the president's authority to authorize the use of military force without congressional approval has been the subject of a lot of debate.
The Constitution divides the powers relating to making war between the president and the Congress. It gives Congress the power to declare war, and obviously that means something. It gives Congress the power of the purse, and obviously military operations can't be carried out for any length of time without congressional appropriations. Congress is given the power to raise and support an Army, to maintain a Navy, to make the rules for governing the land and the naval forces.
The president has the power of the commander in chief. And I think there's been general agreement and the Prize cases support the authority of the president to take military action on his own in the case of an emergency when there is not time for Congress to react.
BIDEN: Is that the deciding question, if the Congress does not have the time to act?
ALITO: Well, the Prize cases I think are read to go as far as to say that in that limited circumstance the president can act without congressional approval.
A lot of scholars say that what's important as far as congressional approval is not the form, it's not whether it's a formal declaration of war or not, it's whether there is authorization in one form or another.
The war powers resolution was obviously an expression of the view on the part of Congress...
BIDEN: If I can interrupt, Judge, since I'm not going to have much time. The war powers resolution is a legislative act. I don't want to get into that. I'm talking about the war clause.
And the administration argues and Yoo argues that, quote, "I do not think the president is constitutionally required to get legislative authorization for launching military hostilities."
And that's a pretty central question. That means, if that interpretation is taken, the president could invade -- and maybe there's good reason to -- invade Iraq -- excuse me, invade Syria tomorrow or invade Iran tomorrow without any consultation with the United States Congress.
And that's a pretty big deal. Up to now, Fisher and Henkin and most of the scholarship here has said, "No, no, no. The president's authority falls into the zone where he needs it for emergency purposes, where he doesn't have time to consult with the Congress."
But you seem to be agreeing with the interpretation of the president, Professor Yoo, that says, "Nope, the president has the authority, if he thinks it's necessary, to move from a state of peace to a state of war without any congressional authorization."
ALITO: I hope I'm not giving you that impression, Senator, because I didn't mean to...
BIDEN: Oh, OK, maybe you can...
ALITO: ... say that.
I have not read Professor Yoo's book or anything that he or anyone else has written setting out the theory that you've described.
ALITO: I've been trying to describe what I understand the authorities to say in this area. Generally, when this issue has come up, or variations of this issue have come up in relation to a number of recent wars -- there were a number of efforts to raise issues relating to this in relation to the war in Vietnam. There was an effort to raise it in relation to our military operations in the former Yugoslavia. In most of those instances they didn't -- in most of those instances were -- the cases were dismissed by the lower courts under the so-called political question doctrine that you described earlier.
BIDEN: You and I both know that's a different issue. The political question doctrine is a different issue than whether or not you think that -- I'm asking you as a citizen whether you think that as the administration is arguing -- for example, it argues that the case is made, and I'm quoting, "that the Constitution permits the president to violate international law when he's engaged in war." It just states it flatly. That's what the memorandum of the Justice Department states flatly. The president has that sole authority.
He argues the Congress would have that authority as well, just violate international law. He goes on to argue, as does the memorandum argue -- this is this administration's position, so that's why it's relevant. It says that the president may use his commander in chief and executive power to use military force to protect the nation, subject only to the congressional appropriations.
And that means that the argument the administration is making is the only authority that Congress has is to cut off funds. Let's say we didn't want the president to invade Iran.
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.
Well, let me move to something you have spoken about, stare decisis. I know it's been raised a number of times. That's basically following precedent.
As a Circuit Court of Appeals judge, in layman's language, what does that mean, you're required to -- as a circuit court -- what does it mean that you're required to adhere to stare decisis?
ALITO: We are required to follow decisions of the Supreme Court, to start out with because it's a superior court. We when we sit as a panel, it is our practice and I think it's the practice of all the courts of appeals that one panel can't overrule a decision of another panel.
So it means that. When we sit en banc, it is a doctrine that counsels adherence to prior precedent.
BIDEN: But you're allowed in that -- like you did in ACLU v. Schundler, you concluded, which I think you had a right to do, that the precedent of your circuit was incorrect. And you ruled the other way.
I think you had a right to do that, right?
ALITO: We can't do that at the panel level. We can't say a prior panel decision is incorrect.
BIDEN: No, but you can when you sit en banc?
ALITO: When we sit en banc, we can.
BIDEN: When all the justices...
ALITO: That's correct.
BIDEN: OK. Now, how about for a Supreme Court justice; a Supreme Court justice is not required, is he or she, to follow the precedent of the Supreme Court?
Stare decisis doesn't apply there, does it? It may be practiced, but as a practical matter, no scholar say you're required, as a Supreme Court justice to adhere to precedent, are they -- is it?
ALITO: Well, stare decisis certainly applies. Stare decisis takes different forms. There's what some people call horizontal stare decisis, which means a lower court has to follow the higher court -- I'm sorry -- vertical stare decisis.
And then there are various forms of horizontal stare decisis which means a court either must or should follow its own prior precedents. And, on the Supreme Court, of course, when we're talking about whether the Supreme Court is going to follow a prior Supreme Court precedent, that's horizontal.
And there it isn't an absolute requirement to follow a prior precedent.
BIDEN: It is not?
ALITO: It is not an absolute requirement, but it is the presumption that the court will follow its prior precedents.
BIDEN: I understand that. But no one would argue that if you or any other justice broke from -- clearly broke from the precedent of a Supreme Court decision, that you're in any way violating your ethical responsibility as a judge.
BIDEN: You're entitled to do that. Not that you would, but you're entitled to do that, and no one would question that as a matter of right. Is that not correct?
ALITO: I think people would question it, if you disregarded the factors that go into the stare decisis analysis. If you said I don't believe, I'm not absolutely required to follow prior Supreme Court precedent, and I regard every question as a completely open question, I think...
BIDEN: With all due respect, the way it would likely take the form is a justice could say I disagree with the line of cases that say that, you know, a president needs congressional authority, or that a, whatever the line of cases are.
They're not likely to say I disregard stare decisis. It's like what Scalia said in the abortion case, he said, "Look, we just look at this head on. Roe v. Wade is wrongly decided. We should just say so." And he's entitled to do that. And if he had a majority -- I'm not suggesting what you would do on that -- he's entitled to do that, and that wouldn't be a violation of any written or unwritten code that relates to a Supreme Court justice's conduct, would it?
ALITO: Different justices and different judges have different views about stare decisis, but my view is that you need a special justification for overruling a prior precedent and that reliance and reaffirmation are among the factors that are important.
ALITO: But I've also said it's not an inexorable command.
In the area of constitutional law, there has to be the ability to revisit a case like Plessy v. Ferguson. I don't think anybody would want a system of stare decisis that made that impossible.
BIDEN: OK.
My time -- three minutes left -- I'd like to try to get quickly to another area here, if I may, that you've been questioned on, this notion of unitary executive and the questions referencing Morrison and the dissent of Scalia, et cetera.
As I reach and teach the dissent of Scalia -- and I won't take the time, in the interest of time, to read his exact language -- he has a very scathing and intellectually justifiable, many would argue, criticism of the test employed by the majority in that case to determine whether separation of powers has been breached. He argues there are very bright lines, that there can be no sharing of any of the power. If it's an executive power, it's an executive power and it's executive power.
He would argue that the alphabet agencies -- the FDA, the FCC, the EPA -- they are really not constitutionally permissible because the FDA makes a legislative judgment, it makes a judicial judgment, and it imposes fines and penalties, and so therefore it does all three things as sort of the bastard child.
But most of the -- the majority of the justices say that as long as the power one branch is using does not unduly trench upon the power of the other branch, or it does not substantially affect its ability to carry out its powers, then that's permissible.
BIDEN: Which school of thought do you fall into?
ALITO: Well, different issues are presented in different factual situations.
BIDEN: That's why I didn't give you a specific issue.
ALITO: Well, I think you need a specific issue in order to answer it's. For example...
BIDEN: OK, the FDA, is it constitutional, Federal Drug Administration?
ALITO: I don't know whether there are statutory restrictions on the removal of the FDA commissioner.
BIDEN: No, but there are. The FDA does exercise judicial power. It makes judgments -- "You, drug company A, violated the law."
ALITO: And I don't know any constitutional object to that.
BIDEN: Well, Scalia?
ALITO: I don't know that he would have a constitutional objection to that. My understanding is that he would not have a constitutional objection to their doing that, but I could be mistaken.
And I wouldn't want to prejudge my constitutional question that might be presented to me. But I'm not aware of a constitutional -- if there isn't any limitation on removal, then there obviously isn't a removal issue there.
As to the agencies where there are restrictions on the removal of commissioners who are appointed for a term, that issue is dealt with in Humphrey's Executor and Weiner and in Morrison. And Morrison was 8-1 and the other cases would be, sort of, a fortiori from Morrison.
BIDEN: Well, my time's up. And hopefully someone will pursue this unitary executive issue about private suits, because I thought what you explained was a little inconsistent, or I don't understand it. But I'll let someone else do that.
Thank you very much.
SPECTER: Thanks very much, Senator Biden.
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