Judge Roberts on Presidential and Congressional War Powers

Marty Lederman

Adapted from SCOTUSblog.

In his questioning yesterday, Senator Leahy asked Judge Roberts a series of questions about 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 there are few, if any, issues 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-prohibition 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. The memo in question addressed 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.)

In his testimony yesterday, in response to an invitation from Senator Leahy, Judge Roberts 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:

SENATOR LEAHY: 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.

Whether one agrees or disagrees that this question of Congress's power to end military action depends on "the particular circumstances," surely the question -- and Roberts's testimony on it -- is extremely important.

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.

Later in the day, Senator Durbin asked Roberts: "Would the anti-torture statute be unconstitutional simply because it conflicts with an order issued by the president as commander in chief?" Roberts responded:

"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."
Posted 10:09 AM by Marty Lederman [link]