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.

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.

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).