Topic: Can Congress Stop War
Senator: Leahy
Date: SEPTEMBER 15, 2005
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LEAHY: So I'll go to the flip side: Can Congress stop a war?
ROBERTS: Well, that's, of course, a difficult question.
Now Congress has always exercised the power of the purse with respect to activities of that sort and regulated the funding for that type of activity. And that's, of course, always been the core of Congress' authority.
But the question to actually terminate hostilities that the executive has determined to initiate either with the authorization of Congress or a situation of congressional silence or acquiescence, to go back to the Youngstown decision, the issue of what Congress' authorities are to terminate, short of exercising its power with respect to the purse, those are unsettled, and I think have to be addressed in the context of a particular case.
And the memo to which you refer, again, I was a lawyer for the executive and any cautious lawyer for the executive, without regard to the administration, would be on the alert for any type of suggestion that there are limits on that power.
LEAHY: To show you how cautious you were, you wrote, "There's no clear line separating what the president may do on his own and that requires a formal declaration of war."
But you conclude the exercise of presidential power in connection with the Grenada incident fell comfortably on the legitimate side of the line.
LEAHY: What's a situation that falls on the illegitimate side of the line where a declaration of war would be needed?
ROBERTS: Well, you take the history, anyway -- if you have a situation like the Korean War taking place without a declaration of war, the war in Vietnam taking place without a declaration of war, I think it's difficult to articulate in the abstract where the line would be, other than the fact that throughout our history, there have been those significant types of engagements that I suspect all of the people involved in them thought we're at war that did not have a congressional declaration of war.
So, again, where the line is drawn or how it would be drawn in a particular case or even what the role of the courts would be -- as you know, in these areas, there's often an initial dispute, "Is this a judiciable question that the court should entertain in the case of litigation and a conflict between the executive and legislative concerning something like whether a declaration of war was required?" that would be a question the court should to address before the reaching the merits.
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