Judge Roberts and the Commander-in-Chief Clause
In his invaluable as-it-happens blogging of the hearing, Tom expresses surprise that the Leahy/Roberts exchange has become so “heated” on what Tom calls a “pretty dry issue” — namely, whether Congress can, by statute, require cessation of military hostilities or prohibit the President from using torture.
Perhaps it isn’t at this moment as politically salient as contentious issues such as abortion and the Commerce Clause, but I can think of no issue less dry, or more important, than whether Congress has the constitutional power to restrict certain forms of military action or presidential wartime conduct.
Thankfully, Judge Roberts has testified that the torture question falls within Category III of Justice Jackson’s justly famous Youngstown concurrence — that is, it’s a case in which Congress has spoken clearly and has prohibited certain presidential action pursuant to the legislature’s express article I authorities, and thus the President’s power is “at its lowest ebb.” There is no such concession (or even citation to Youngstown) in the infamous OLC Torture Memo. (See my posts here and here.) Therefore, Roberts’s testimony might be seen as a major step away from the current Administration’s views.
Unfortunately, Judge Roberts did not go so far as to say that the torture statute is actually constitutional even when it restricts the President from using the techniques that he thinks are most effective in defeating the enemy. (In fairness, Senator Leahy did not push Judge Roberts on the question once he conceded that it’s a Youngstown Category III case.) More troubling still, Roberts did not disavow the suggestion in an Executive branch memo he wrote that Congress could not end a war over the President’s objection, and testified that whether Congress has the power to do so “depends on the circumstances.” That is to say, he was unwilling to concede that if the national legislature passes a law requiring cessation of certain hostilities — presumably by a supermajority sufficient to override a presidential veto — the President must abide by that statute. [UPDATE: I've now seen the memo in question. It dealt with a proposed bill granting a veterans' preference to persons who served in Lebanon between August 20, 1982 and the date the Lebanese operation would end, with the latter defined either by presidential proclamation or by concurrent resolution of Congress. In a February 29, 1984 memo to the White House Counsel, Roberts correctly noted that the concurrent resolution provision would violate INS v. Chadha. He went on to say, in addition, that even if the bill were changed so that hostilities could be ended upon a joint resolution of Congress enacted over presidential veto -- i.e., by statute -- it would present a "difficulty" because "it recognizes a role for Congress in terminating the Lebanon operation," and "I do not think we would want to concede any definitive role for Congress in terminating the Lebanon operation" (emphasis in original). Although Roberts did not expressly state that a statute terminating the Lebanon operation would be unconstitutional, the memo could be read to suggest such a constitutional view. It's only a one-paragraph memo, however -- not a sustained argument -- and so there is some ambiguity.]
Whether one agrees or disagrees that thes question of Congress’s power to end military action “depends on the circumstances,” surely the question — and Roberts’s testimony on it — is of the gravest importance.
Roberts also testified that “any lawyer for any administration would have taken the same position” on the question that he did in the February 1984 memo — i.e., that there’s a “difficulty” in recognizing any role for Congress in terminating military hostilities. I hope (as a former Executive branch lawyer) that that is not correct — and if it is, it’s extremely troubling.
UPDATE: Further Q&A on the Torture Memo:
SENATOR DURBIN: Would the anti-torture statute be unconstitutional simply because it conflicts with an order issued by the president as commander in chief?
ROBERTS: No, Senator. Not simply because of the conflict. And I have to say I don’t know — that’s one of the 80,000 memos I don’t know about. So I would have to understand what the point was, what the issue was, and the language you read in context before I could respond to that.
Presumably, however, if the president violated a statute ending a military conflict (after it passed by 2/3 supermajorities in each chamber to override a presidential veto), his conduct would be so repugnant to the Congress that the House (only a majority) would impeach and the (the same 2/3s supermajority) Senate would remove. One supposes then that this (potential) political disposition should lead the Court to abstain from the question anyway.
Comment by The Jaded JD — September 13, 2005 @ 11:17 am
Marty,
I agree that Judge Roberts’ views of the Commander in Chief Clause are important, but I still think you are overstating the radical nature of the Commander in Chief argument. Why was Walter Dellinger’s use of the exact same argument as OLC Chief against Republican Congressional efforts to control deployment of U.S. troops to the U.N. not as troubling to you? (and he didn’t cite Youngstown either). See my post at http://lawofnations.blogspot.com/2005/01/where-kohs-testimony-went-wrong.html
ML responds: Julian, you’ll probably be heartened to note that the 1996 Dellinger Opinion troubles me, too, although I think it’s a closer call (principally because it deals with command authority).
Comment by Julian Ku — September 13, 2005 @ 12:02 pm
“That is to say, he was unwilling to concede that if the national legislature passes a law requiring cessation of certain hostilities — presumably by a supermajority sufficient to override a presidential veto — the President must abide by that statute.”
Here is what was actually said, according the CQ Transcripts:
LEAHY: 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.
* * *
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.
ML responds:
I hope Kent is right in suggesting that Roberts would be more amenable to Congress’s power. But I encourage interested readers to read the full exxchange: Roberts resisted Leahy’s invitation to state that Congress could terminate a war. And there’s this exchange:
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.
Comment by Kent Scheidegger — September 13, 2005 @ 1:12 pm
Leahy’s nightmare scenario is that Congress tries to cut off a war, and the President continues it nonetheless. I think the chances are infinitesimal of that actually happening. What President would do so if the nation were not in imminent peril? What Congress would cut off the war if it were?
I share Marty’s evident amusement that Tom thinks this is a dry subject. It sure as heck wasn’t in my con law class, full of people who had been active participants on both sides of the Vietnam controversy. It’s a good thing the chairs were bolted down.
Comment by Kent Scheidegger — September 13, 2005 @ 2:12 pm