Topic: President's Authority to Invade a Sovereign Nation
Senator: Leahy
Date: SEPTEMBER 15, 2005
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LEAHY: You suggest I may have over-read your memo on Grenada. You said it really talked about veterans' rights but, actually, your memo -- what struck me, it doesn't say "veterans' rights," it says "war powers" on it.
The Constitution invests the power of declaring war in Congress not the president. I still have a hard time squaring that with your inherent authority arguments you advance in that Grenada memo.
Maybe I could ask it this way: Do you continue to believe that the president has inherent authority to invade a sovereign nation, absent attack by a foreign power?
ROBERTS: Senator, that is a very abstract hypothetical. There are situations that arise when an executive may determine that that type of action is necessary. That may be challenged. I don't think abstract questions like that should be answered.
There have been situations in our past where that authority has been claimed both abstractly and concretely. Certainly Congress has the power to declare war but, as you know, of course, there have been several incidents in our history -- the Korean War, the Vietnam War, others -- where there has been authorization for the use of force, not a declaration of war.
You know the history when Madison's original proposal gave Congress the authority to make war and he thought that should be changed so that the executive would have the authority to respond to an invasion and I appreciate that part of your question.
LEAHY: But you also have George Washington -- if you're going to quote people back to that time -- George Washington spoke of "no offensive expedition of importance can be undertaken until after Congress shall deliberate (inaudible) and authorize such a mission."
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