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Thursday, January 12, 2006

Judge Alito on the Government's Wartime Authority: Day Four


From the Senate Judiciary Committee's hearings on Judge Samuel Alito's nomination to the Supreme Court:

BIDEN: Do you think the president has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there's an immediate threat to our national security?

ALITO: Well, that's a question that I don't think is settled by -- the whole issue of the extent of the president's authority to authorize the use of military force without congressional approval has been the subject of a lot of debate.

The Constitution divides the powers relating to making war between the president and the Congress. It gives Congress the power to declare war, and obviously that means something. It gives Congress the power of the purse, and obviously military operations can't be carried out for any length of time without congressional appropriations. Congress is given the power to raise and support an Army, to maintain a Navy, to make the rules for governing the land and the naval forces.

The president has the power of the commander in chief. And I think there's been general agreement and the Prize cases support the authority of the president to take military action on his own in the case of an emergency when there is not time for Congress to react.

BIDEN: Is that the deciding question, if the Congress does not have the time to act?

ALITO: Well, the Prize cases I think are read to go as far as to say that in that limited circumstance the president can act without congressional approval.

A lot of scholars say that what's important as far as congressional approval is not the form, it's not whether it's a formal declaration of war or not, it's whether there is authorization in one form or another.

The war powers resolution was obviously an expression of the view on the part of Congress....

I've been trying to describe what I understand the authorities to say in this area. Generally, when this issue has come up, or variations of this issue have come up in relation to a number of recent wars -- there were a number of efforts to raise issues relating to this in relation to the war in Vietnam. There was an effort to raise it in relation to our military operations in the former Yugoslavia. In most of those instances they didn't -- in most of those instances were -- the cases were dismissed by the lower courts under the so-called political question doctrine that you described earlier....

BIDEN: So it's really kind of important, whether or not you think the president does not need the authority of the United States Congress to wage a war where there's not an imminent threat against the United States. And that's my question.

ALITO: And, Senator, if I'm confirmed and if this comes before me -- or perhaps it could come before me on the Court of Appeals -- the first issue would be the political question doctrine that I've described.

But if we were to get beyond that, what I can tell you is that I have not studied these authorities and it is not my practice to just express an opinion on a constitutional question.... including particularly one that is as momentous as this. I've set out my understanding of what the Constitution does in allocating powers relating to war between the executive and Congress, and some of what some of the leading authorities have said on this question. But beyond that -- and I haven't read Professor Yoo's book or anything that he's written on this issue -- I would have to study the question.

***

FEINSTEIN: What I'm saying is, that we set up a legal procedure by which you do it and we set two exigent circumstances to excuse a president from having to do it. Therefore, doesn't that law prevail?

ALITO: As I said, I think the threshold question is interpreting the scope of that and it might turn out to be an open-and-shut argument. It might turn out to be very complicated argument. I would not presume to voice an opinion on the question here, in particular because I have not studied it in the depth that I would have to study it before reaching a judicial decision on the matter.

Then, depending on how that issue was resolved, it would be -- it might be necessary to go on to the constitutional question. I think you exactly outlined where that would fall under Justice Jackson's method of analyzing these questions. This would be in the category in which, if it was determined that there was not statutory authorization...

FEINSTEIN: There was. No statutory authorization to wiretap, right?

ALITO: If it was determined that there was statutory authorization, then I do not know what the constitutional issue would...

FEINSTEIN: But, if there wasn't...

ALITO: There might be a constitutional issue. Let me stop there.

There would be a Fourth Amendment issue, obviously.

If you went beyond -- if you determined that there was not statutory authorization, then as far as the issue of presidential power is concerned, you would be in Justice Jackson's scheme, in the category where the president -- you would have to determine if this is the argument that is made; whether the president's power, inherent powers, the powers given to the president under Article II, are sufficient, even taking away congressional authorization, the area where the president is asserting a power to do something in the face of an explicit congressional determination to the contrary.

FEINSTEIN: Now, in my lay mind, the way I interpret that -- and correct me if I'm wrong -- is that you essentially have a conflict, and that it hasn't been decided whether one trumps the other.

ALITO: I think that's close to the point that I was trying to make. The way Justice Jackson described it was that you have whatever executive power the president has minus what Congress has taken away by enacting the statute.

FEINSTEIN: Even though you have a statutory prohibition, even a criminal prohibition?

ALITO: Well, I'm not suggesting how the determination would come out. I think that it is implicit in the way Justice Jackson outlined this that presidential -- he said it expressly -- presidential power is at its lowest in this situation, where the president is claiming the authority to do something that Congress has prohibited.


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