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 Topic: Executive Power

 Senator: Feinstein

 Date: SEPTEMBER 15, 2005

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FEINSTEIN: A number of people on our side are very concerned about executive power and what we perceive, either rightly or wrongly, to be a greatly expanded executive authority in recent years, causing enormous concern in a number of different ways.

Let me go back into your past. In trying to get Senate documents, one of the documents withheld was a draft memo titled "Establishment of NHAQ, The Nicaraguan Humanitarian Assistance Office." This office was used by President Reagan to give aid to the Nicaraguan Contras following the passage of the Boland amendment. And that was a prohibition on providing funding to the Contras.

What involvement did you have with the Nicaraguan Humanitarian Assistance Office?

ROBERTS: I'm not familiar with the memorandum. If it was withheld, it was probably withheld from me as well, and I don't recall any involvement.

So I don't recall any -- I do know there was an issue -- an issue was raised. I have seen memoranda that I know have been released about private fund-raising activities. And I do know that I gave advice in order to make sure that they didn't engage in lobbying activities in order to be consistent with the Boland amendment. I've seen those, but beyond that, I'm not recalling anything.

FEINSTEIN: Do you believe that the administration's provision of funds to the Contras exceeded the executive's power in light of the Boland amendment's prohibition on funding the Contras?

ROBERTS: You know, it's not something -- I just, sort of, know what I've read in the papers about it. And, you know, it seemed to me that it did. But again, that's just based on -- it's not based on a study or a legal analysis.

ROBERTS: Just sort of -- I think a lot of it...

FEINSTEIN: Well, it's a pretty simple question.

I mean, when the Congress passes a law that says "Don't fund" and the executive finds a covert way to fund -- and, as you know, one of the great redeeming qualities of President Reagan was that he did an admission of wrongdoing, and I think the American people accepted that. He was able to admit a mistake, which I tend to think is hard to do in this arena. But in a way, it's a sign of a big person to be able to come forward and say, "I was wrong."

So on its face, what you're saying, if I understand you, you do believe that the provision of funds exceeded the executive power in this instance.

ROBERTS: Well, again, I haven't done a legal study, but based on what I know, which is just what every citizen knows from reading this -- I think all of this took place after I was no longer in the government or at least, came to light after that -- it seemed to be inconsistent with the law.

FEINSTEIN: Let me ask you a general question, then.

If an executive exercises power in direct violation of an act of Congress, is such an act unconstitutional?

ROBERTS: Well, the answer depends, Senator. And this is where you get back to the Youngstown analysis, where Justice Jackson said there are three categories: You can act with Congress' support, be unclear what Congress' position is, and he recognized a third category where an executive may act in the face of a congressional prohibition.

And there are certain areas where the executive does have authority to the exclusion of Congress. Without stating a legal view, for example, one that law professors regularly talk about is the pardon power. In other words, that's given expressly to the president under the Constitution.

And if Congress were to pass a restriction on the pardon power, does the president nonetheless have the authority to act under the Constitution? That's a difficult question, but it may be that the president's authority would trump Congress' authority.

So I can't answer a question in the abstract without knowing exactly what the record is and what the situation is.

What Justice Jackson said in Youngstown, though, is obviously true, that if the president is acting in the face of congressional opposition, his power is at its lowest ebb.

ROBERTS: As Jackson put it, "It includes his powers, less whatever powers Congress has."

So if it's in an area in which Congress has legitimate authority to act, that would restrict the executive's authority.

FEINSTEIN: Which this case was. All right.

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