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 Topic: Separation of Powers - Does Congress Have the Power to Stop War?

 Senator: Leahy

 Date: SEPTEMBER 13, 2005

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SPECTER: Senator Leahy?

LEAHY: Thank you, Mr. Chairman.

Good morning, Judge.

ROBERTS: Good morning.

LEAHY: You look like you survived well yesterday.

No one doubts you've had a very impressive legal career thus far. And now you've been nominated to be chief justice of the United States.

LEAHY: But I have concerns, as I go back over your career -- and we've had some discussions of this already -- about some of the themes in your career, some of the goals you sought to achieve using what is formidable skill.

My first area of concern involves a fundamental question of constitutional philosophy: the separation of powers. The last thing our founding fathers wanted was to be ruled by king with absolute power, and the next to the last thing they wanted was to be ruled by a temporary king with absolute powers for four years.

So we've got the political system we've talked about a great deal yesterday of checks and balances. Each of the three branches of government constrains the other when they overreach. Americans have relied on this for our fundamental guarantees of freedom and democracy and open government.

And all of us who serve, whether in the executive branch, the judiciary, as you do, the legislative, as we do, have taken a very solemn oath to uphold the Constitution.

But there have been times throughout our history when the separation of powers has been strained to its limits by presidents claiming power way beyond -- actually, almost imperial powers. So let's this focus this down a little bit more on presidential power.

Let's go to the president's power as commander in chief of the armed forces. He certainly has that power under the Constitution.

I look back to the time when you were a lawyer in the Reagan White House. You objected to a bill that would give certain preferences to veterans who had served in Lebanon between August 20, 1982, and, quote, "the date the operation ends," close quote. And the day would be, as you just said, by presidential proclamation or a concurrent resolution of Congress.

And you wrote that the difficulty with such a bill is that it recognizes a role for Congress in determining the Lebanon operation. And you wrote further, quote "I do not think we would want to concede any definite role for Congress in termination the Lebanon operation, even by joint resolution presented to the president."

LEAHY: And then you explained even parenthetically that even if the president vetoed such a joint resolution, of course, Congress could override it by two-thirds majority.

I find that troubling; I'll tell you why.

Before I read your memo, I thought everybody agreed there would be only one answer to the question of whether Congress could stop a war.

Your memo suggests that Congress is powerless to stop a president who is going to conduct an unauthorized war. I really find that extremely hard to follow. And I imagine most Americans would.

I'll give you a hypothetical. Congress passes a law for all U.S. forces to be withdrawn from the territory of a foreign nation by a set date. The president vetoes the law. The Congress overrides that, sets into law, "You must withdraw by a certain date."

Now, is there any question in your mind that the president would be bound to faithfully execute that law?

ROBERTS: Well, Senator, I don't want to answer a particular hypothetical that could come before the court, but I'm happy to comment on the memorandum that you're discussing.

LEAHY: No, wait a minute. I mean, isn't this kind of hornbook law? I don't know of any cases coming before the court; I mean, this is kind of hornbook.

The Congress says to the president, "You got to get out," and pass a law which is either signed into law by the president or you override a presidential veto. Why wouldn't the president have to -- charged as he is under the Constitution to faithfully execute the law, why wouldn't he have to follow that law?

ROBERTS: Well, Senator, that issue of -- and similar issues have, in fact, come up. There were, for example, lawsuits concerning the legality of the war in Vietnam; various efforts. And certainly the arguments would be made on the other side about the president's authority. And that may well come before the court.

LEAHY: Judge, with all due respect, the cases in Vietnam were not based on a specific law passed by Congress to get out. I mean, Congress did cut off the funding...

ROBERTS: Right.

LEAHY: ... in April, 1975, by a one-vote margin in the Armed Services Committee. I know because I was the newest member of the committee at that time -- voted to not authorize the war any longer.

But are you saying that Congress could not pass a law that we must withdraw forces?

ROBERTS: No, Senator, I'm not.

What I'm saying is that that issue or issues related to that could well come before the court, and that's why I have to resist answering a particular hypothetical question.

The memo you refer to -- I was working in the White House Counsel's Office then. The White House Counsel's Office is charged to be vigilant to protect the executive's authority, just as you have lawyers here in the Senate and the House has lawyers who are experts and charged with being vigilant to protect the prerogatives of the legislative branch.

I believe very strongly in the separation of powers. It was a very important principle that the framers set forth that is very protective of our individual liberty and make sure the legislative branch legislates, the executive executes, the judicial branch decides the law.

ROBERTS: And it was part of the framers' vision that each of the branches would be, to a certain extent, jealous of what they regarded as their prerogatives.

And to extent there is a dispute between the legislative branch and the executive branch, it's the job, of course, of the judicial branch to resolve that dispute.

LEAHY: But your position in this memo in President Reagan's office seemed to indicate that Congress does not have the ability to end hostilities.

ROBERTS: With respect, Senator, you're vastly over-reading the memorandum.

LEAHY: Tell me why.

ROBERTS: Well, because it had nothing to do with terminating hostilities. It had to do with the eligibility for certain pension benefits.

And the question then was whether or not -- who should be determining when the hostilities ceased or should cease. And there again, a lawyer for the executive branch -- not a judge who would be considering the issue in an entirely different light, but a lawyer for the executive branch -- a careful lawyer would say: "There may be a problem there. Are we conceding anything by saying the legislature gets to determine when the hostilities end?"

LEAHY: Right. I don't think it's overreading it at all, as you suggest, to say -- when you write, "I do not think we would want to concede any definitive role for Congress in terminating the Lebanon operation even by joint resolution presented to the president."

ROBERTS: Well, with respect, Senator...

LEAHY: You're saying you don't want to concede any ability to the Congress to stop a war.

ROBERTS: With respect, Senator, the memorandum is about legislation for -- if I'm remembering it correctly; it was 20 some years ago -- pension benefits or certain additional pay benefits. That's what it was about.

And I suspect, if you asked any lawyer for any president of any administration whether they wanted to concede that general principle or if, as careful lawyers, they would prefer that that provision were rewritten or not in there, I am fairly confident, regardless of the administration, that a lawyer for the executive would take the same position.

Now, I am also fairly confident that one of your lawyers here in the Senate would take the opposite position.

LEAHY: Let me ask you this question: Does Congress have the power to declare war?

ROBERTS: Of course. The Constitution specifically gives that power to Congress.

LEAHY: Does Congress, then, have the power to stop a war?

ROBERTS: Congress certainly has the power of the purse. And that's the way, as you noted earlier, that Congress has typically exercised...

LEAHY: Yes, but we know, we did that in the Boland amendment. And the Reagan administration, as we found out in the sorry chapter of Iran-Contra, went around that, violated the law, worked with Iran, sold arms illegally to Iran -- I think that's one of the axis of evil today -- to continue the Contra war in Central America.

LEAHY: So the power of the purse -- we've cut off money, but the wars sometimes keep going.

Do we have the power to terminate a war? We have the power to declare war. Do we have the power to terminate war?

ROBERTS: Senator, that's a question that I don't think can be answered in the abstract. You need to know the particular circumstances and exactly what the facts are and what the legislation would be like, because the argument on the other side -- and as a judge, I would obviously be in a position of considering both arguments, the argument for the legislature and the argument for the executive. The argument on the executive side will rely on authority as commander in chief and whatever authorities derive from that.

So it's not something that can be answered in the abstract.

LEAHY: You said -- your answer is that you were just talking about the question of veterans' benefits and all that after this. I would note that the memo you wrote wasn't entitled "Veterans' Benefits." It was entitled "War Powers Problem." I don't think I overstate it.

Now let me as you another question. We spoke about this again this morning, and I had told you when we met -- in fact, I gave you a copy of the Bybee memo so that this would not be a surprise to you.

The Justice Department's Office of Legal Counsel issued a secret opinion in August 2002 which argued the president enjoys, quote, "complete authority over the conduct of war," close quote. And, quote, "The Congress lacks authority to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during war," close quote.

And then it took the argument to the extreme when it concluded the president, when acting as commander in chief was not bound -- was not bound -- by the federal law banning the use of torture.

LEAHY: In other words, the president would be above the law in that regard. You did not write that memo -- I hasten to add -- but you've seen it.

And I asked Attorney General Gonzales for his view of this memo, in particular this sweeping assertion of executive power, which puts the president above the law. He never gave an answer on that and that's tone of the reasons why many had voted against his confirmation.

So, now let me ask you this: Do you believe that the president has a commander-in-chief override to authorize or excuse the use of torture in interrogation of enemy prisoners even though there may be domestic and international laws prohibiting the specific practice?

ROBERTS: Senator, I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the constitution and statutes. Now, there often arise issues where there's a conflict between the legislature and the executive over an exercise of executive authority -- asserted executive authority.

The framework for analyzing that is in the Youngstown Sheet and Tube case, the famous case coming out of President Truman's seizure of the steel mills.

LEAHY: The Supreme Court held that unconstitutional.

ROBERTS: Exactly. And the framework set forth in Justice Jackson's concurring opinion, which is the opinion that has sort of set the stage for subsequent cases, analyzes the issue in terms of one of three categories.

If the president is acting in an area where Congress is supportive -- expressly supportive of his action -- the president's power is at its maximum. If the president is acting in an area such as you postulate under the Bybee, memo where the president is acting contrary to congressional authority, what justice Jackson said is, the president's authority is at its lowest ebb.

It consists solely of his authority under the constitution, less whatever authority Congress has.

ROBERTS: And then, of course, there's the vast little area where courts often have to struggle because they can't determine whether Congress has supported a particular exercise or not. The Dames & Moore case, for example, is a good example of that.

SPECTER: Would you consider -- go ahead.

ROBERTS: I just going to say the first issue for a court confronting the question you posed would be whether Congress specifically intended to address the question of the president's exercise of authority or not.

LEAHY: Well, yes, I would think that if you pass a law saying nobody in our government shall torture, I think that's pretty specific.

But let me ask you this: Is Youngstown settled law? Would you consider Youngstown settled law?

ROBERTS: I think the approach in the case is one that has guided the court in this area since 1954, '52, whatever it was.

LEAHY: The reason I ask that, when Mr. Bybee wrote this memo, he never cited Youngstown. I think it was Harold Koh, the dean at the Yale Law School who said this was a stunning omission. I don't agree with that. The president, instead, went ahead and appointed -- or nominated Mr. Bybee to a federal judgeship.

ROBERTS: Youngstown's a very important case in a number of respects; not least the fact that the opinion that everyone looks to, the Jackson opinion, was by Justice Jackson who was, of course, FDR's attorney general and certainly a proponent of expansive executive powers...

LEAHY: You've also said he was one of the justices you admire the most.

ROBERTS: He is, for a number of reasons. And what's significant about that aspect of his career is here's someone whose job it was to promote and defend an expansive view of executive powers as attorney general, which he did very effectively. And then as he went on the court, as you can tell from his decision in Youngstown, he took an entirely different view of a lot of issues; in one famous case even disagreeing with one of his own prior opinions. He wrote a long opinion about how he can't believe he once held those views.

ROBERTS: I think it's very important...

LEAHY: Are you sending us a message?

ROBERTS: Well, I'm just saying...

(LAUGHTER)

One reason people admire Justice Jackson so much is that, although he had strong views as attorney general, he recognized, when he became a member of the Supreme Court, that his job had changed and he was not the president's lawyer, he was not the chief lawyer in the executive branch. He was a justice sitting in review of some of the decisions of the executive.

And he took a different perspective. And that's, again, one reason many admire him, including myself.

LEAHY: The reason I ask -- I mean, I thought the memo was outrageous, and once it became public -- not until it became public, but after it became public, the president disavowed it and said he is opposed to torture, and I commend him for that.

Many wish the administration had taken that position prior to the press finding out about it.

But in the Jackson opinion -- and I just pulled it out here -- he says, "The president has no monopoly of war powers, whatever they are. Congress cannot deprive the president of the command of the Army and Navy. Only Congress can provide him with an Army and Navy to command. Congress is also empowered to make rules for the government and regulation of land enabled forces. By which it may, to some unknown extent, impinge upon even command functions."

Do you agree that Congress can make rules that may impinge upon the president's command functions?

ROBERTS: Certainly, Senator. And the point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches.

The president is the commander in chief, and that meant something to the founders.

ROBERTS: On the other hand, as you just quoted, Congress has the authority to issue regulations governing the armed forces: another express provision in the Constitution.

Those two can conflict if by making regulations for the armed forces Congress does something that interferes with, in the president's view, his command authority. And in some cases those disputes will be resolved in court, as they were in the Youngstown case.

LEAHY: In his book, "All the Laws But One," Chief Justice Rehnquist, the late chief justice, concluded with this sentence, "The laws will not be silent in time of war but they'll speak with a somewhat different voice."

He offers a somewhat different voice, of course -- the Supreme Court decision, an infamous decision, a horrible decision in my estimation, Korematsu. As we know, in that case, the court upheld the internment of Japanese-Americans in detention camps, not because of anything they had done, not because of any evidence that they were at all disloyal to the United States, but solely based on their race, as sometimes this country has legislated very, very cruelly and very wrongly solely on the question of race.

Now, the Korematsu majority's failure to uphold the Bill of Rights I believe is one of the greatest failures in the court's history.

Now, we can't -- I don't believe -- have a Supreme Court that would continue the failings of Korematsu, especially when we're engaged on a war on terror that could last throughout our lifetime; probably will.

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