Judge ROBERTS. I was asked frequently by other partners to help out particularly in my area of expertise, often involved moot courting, and I never turned down a request. I think it's right that if it had been something morally objectionable, I suppose I would have, but it was my view that lawyers don't stand in the shoes of their clients, and that good lawyers can give advice and argue any side of a case. And as I said, I was asked frequently to participate in that type of assistance for other partners at the firm, and I never turned anyone down.

Chairman SPECTER. My time just expired.

Senator Leahy.

Senator LEAHY. Thank you, Mr. Chairman.
Good morning, Judge.

Judge ROBERTS. Morning.

Senator LEAHY. Looks like you survived well yesterday.

No one doubts you have had a very impressive legal career thus far, and now you have been nominated to be Chief Justice of the United States, but I have concerns as I go back over your career. We have had some discussions about this already, about some of the themes, and some of the goals you sought to achieve in your career using what is formidable skill.

My first area of concern involves a fundamental question of constitutional philosophy, the separation of powers. The last thing our Founding Fathers wanted was to be ruled by a king with absolute power, and the next to the last thing they wanted was to be ruled by a temporary king with absolute power for 4 years. So we have got the political system we talked about a great deal yesterday of checks and balances. Each of the three branches of Government constrains the others when they overreach. Americans have relied on this for our fundamental guarantees of freedom and democracy and open Government. And all of us that serve, whether in the executive branch, the judiciary as you do, the legislative as we do, take an oath to uphold, a very solemn oath to uphold the Constitution.

But there have been times throughout our history where the separation of powers has been strained to its limits by Presidents claiming power way beyond, what was actually almost imperial powers. So let us focus this now a little bit more on Presidential power. Let us go to the President's power as Commander in Chief of the Armed Forces. Certainly he has that power under the Constitution.

I went back to a time when you were a lawyer in the Reagan White House. You objected to a bill that would give certain preference to veterans who had served in Lebanon between August 20th, 1982 and "the date the operation ends." The date would be as either set by Presidential proclamation or a concurrent resolution of Congress. And you wrote that the difficulty with such a bill is that it recognizes a role for Congress in terminating the Lebanon operation. And you wrote further, "I do not think we would want to concede any definite role for Congress in terminating the Lebanon operation even by joint resolution presented to the President." And then you explained parenthetically, that even if the President vetoed such a joint resolution, of course the Congress could over

I find that troubling. I will tell you why. Before I read your memo I thought everybody agreed there would be only one answer to the question of whether Congress could stop a war. Your memo suggested Congress is powerless to stop a President who is going to conduct an unauthorized war. I really find that extremely hard to follow, and I imagine most Americans would. I will give you a hypothetical. Congress passes a law for all U.S. Forces to be withdrawn from the territory of a foreign nation by a said date. The President vetoes the law. The Congress overrides that, and sets into law, you must withdraw by a certain date. Now, is there any question in your mind that the President would be bound to faithfully execute that law?

Judge ROBERTS. Well, Senator, I don't want to answer a particular hypothetical that could come before the Court, but I'm happy to comment on the memorandum that you're discussing.

Senator LEAHY. No, wait a minute. I mean is this not kind of hornbook law? I do not know if there would be any cases coming before the Court. I mean this is kind of hornbook. The Congress says to the President, you have to get out, and passes a law which is either signed into law by the President or overridden-or you override a presidential veto. Why would the President not have to charged as he is under the Constitution to faithfully execute the law, why would he not have to follow that law?

Judge ROBERTS. Well, Senator, that issue and similar issues have in fact come up. There were, for example, lawsuits concerning the legality of the war in Vietnam, various efforts, and certainly the arguments would be made on the other side about the President's authority, and that may well come before the Court.

Senator LEAHY. Judge, with all due respect, the cases in Vietnam were not based on a specific law passed by Congress to get out. I mean Congress did cut off the funding.

Judge ROBERTS. Right.

Senator LEAHY. In April 1975 by a one-vote margin on the Armed Services Committee. I know because I was the newest member of the Committee at that time, and I voted to not authorize the war any longer. Are you saying that Congress could not pass a law that we must withdraw forces?

Judge 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 your particular hypothetical question.

The memo you refer to, I was working in the White House Counsel's Office then. The White House Counsel's office is charged to be vigilant to protect the Executive's authority. Just as you have lawyers here in the Senate and the House has lawyers who are experts and charged with being vigilant to protect the prerogatives of the legislative branch. I believe very strongly in the separation of powers. That was a very important principle that the Framers set forth that is very protective of our individual liberty. It makes sure the legislative branch legislates, the Executive executes, and the judicial branch decides the law.

And it makes-it was part of the Framers' vision that each of the branches would be to a certain extent jealous of what they re

between the legislative branch and the executive branch, it's the job, of course, of the judicial branch to resolve that dispute.

Senator LEAHY. But your position in this memo, and President Reagan's office, seem to indicate that Congress does not have an ability to end hostilities.

Judge ROBERTS. With respect, Senator, you're vastly over-reading the memorandum. It concerned

Senator LEAHY. Tell me why.

Judge ROBERTS. Well, because it had nothing to do with terminating hostilities. It had to do with the eligibility for certain pension benefits, and the question then was whether or not-who should be determining when the hostilities ceased or should cease and there again, a lawyer for the executive branch, not a judge who would be considering the issue in an entirely different light, but a lawyer for the executive branch-a careful lawyer would say there may be a problem there. Are we conceding anything by saying the legislature gets to determine when the hostilities end?

Senator LEAHY. I do not think it is over-reading it at all, as you suggest, to say when you write, "I do not think we would want to concede any definitive role for Congress in terminating the Lebanon operation even by joint resolution presented to the President." Judge ROBERTS. Well, with respect, Senator—

Senator LEAHY. You are saying you do not want to concede any ability to the Congress to stop a war.

Judge ROBERTS. With respect, Senator, the memorandum is about legislation for-if I'm remembering it correctly, it was 20 some years ago-pension benefits or certain additional pay benefits. That's what it was about. And I suspect if you asked any lawyer for any President of any administration whether they wanted to concede that general principle, or if as careful lawyers they would prefer that that provision were rewritten or not in there, I'm fairly confident that regardless of the administration, that a lawyer for the Executive would take the same position.

Now, I am also fairly confident that one of your lawyers here in the Senate would take the opposite position.

Senator LEAHY. Let me ask you this question. Does Congress have the power to declare war?

Judge ROBERTS. Of course. The Constitution specifically gives that power to Congress.

Senator LEAHY. Does Congress then have the power to stop a war?

Judge ROBERTS. Congress certainly has the power of the purse, and that's the way, as you noted earlier, that Congress has typically exercised its

Senator LEAHY. Yes, but we did that in the Boland amendment, and the Reagan administration, as we found out in the sorry chapter of Iran-Contra, went around that, violated the law, worked with Iran, sold arms illegally to Iran-I think that is part of the axis of evil today-to continue the war, the contra war in Central America. So the power of the purse, we have cut off money, the wars sometimes keep going. Do we have the power to terminate war? We have the power to declare war. Do we have the power to terminate

Judge 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. Senator LEAHY. As you said, your answer is that you were just talking about the question of veterans' benefits and all after this. I would note that the memo you wrote was not entitled "Veterans Benefits," it was entitled, "War Powers Problem." I do not think I overstated.

Let me ask you another question. We spoke about this again this morning, and I had told you when we met-in fact, I gave you a copy of the Bybee memo so that this would not be a surprise to you. The Justice Department's Office of Legal Counsel issued a secret opinion in August 2002, which argued the President enjoys "complete authority over the conduct of war," and "the Congress lacks authority to set the terms and conditions under which a President may exercise his authority as Commander in Chief to control the conduct of operations during war." And then took the argument to the extreme when it concluded, the President, when acting as Commander in Chief, was not bound by the Federal law banning the use of torture. In other words, the President would be above the law in that regard. You did not write that memo, I hasten to add, but you have seen it.

I asked Attorney General Gonzales for his view of this memo, in particular this sweeping assertion of Executive power which puts a President above the law. He never gave an answer on that, and that is one of the reasons why many voted against his confirmation.

So now let me ask you this: do you believe that the President has a Commander in Chief override to authorize or excuse the use of torture in interrogation of enemy prisoners even though there may be domestic and international laws prohibiting the specific practice?

Judge ROBERTS. Senator, I believe that no one is above the law under our system, and that includes the President. The President is fully bound by the law, the Constitution and statutes. Now, there often arise issues where there's a conflict between the Legislature and the Executive over an exercise of Executive authority, asserted Executive authority. The framework for analyzing that is in the Youngstown Sheet and Tube case, the famous case coming out of President Truman's seizure of the steel mills.

Senator LEAHY. And the Supreme Court held that unconstitutional.

Judge ROBERTS. Exactly. And the framework that was set forth in Justice Jackson's concurring opinion, which is the opinion that has sort of set the stage for subsequent cases, analyzes the issues in terms of one of three categories: if the President is acting in an area where Congress is supportive, expressly supportive of his ac

acting in an area such as you postulate under the Bybee memo, where the President is acting contrary to congressional authority; what Justice Jackson said is the President's authority is at its lowest ebb, it consists solely of his authority under the Constitution, less whatever authority Congress has; and then, of course, there's the vast middle area where courts often have to struggle because they can't determine whether Congress has supported a particular exercise or not. The Dames & Moore case, for example, is a good example of that.

Senator LEAHY. Would you consider-go ahead.

Judge ROBERTS. I was just going to say the first issue for a Court confronting the question you posed would be whether Congress specifically intended to address the question of the President's exercise of authority or not.

Senator LEAHY. Yes. I would think that if you pass a law saying nobody in our Government shall torture, I think that is pretty specific.

But let me ask you this: is Youngstown settled law? Would you consider Youngstown settled law?

Judge ROBERTS. I think the approach in the case is one that has guided the Court in this area since 1954 or 1952, whatever it was. Senator LEAHY. The reason I ask that, when Mr. Bybee wrote this memo, he never cited Youngstown, and I think it was Harold Koh, the Dean at the Yale Law School, who said this was a stunning omission. I tend to agree with that. The President instead went ahead and appointed-nominated Mr. Bybee to a Federal judgeship.

Judge ROBERTS. Youngstown is a very important case in a number of respects, not least the fact that the opinion that everyone looks to, the Jackson opinion, was by Justice Jackson, who was of course FDR's Attorney General, and certainly a proponent of expansive Executive powers.

Senator LEAHY. You have also said he is one of the Justices you admire the most.

Judge ROBERTS. He is for a number of reasons. What's significant about that aspect of his career, is here is someone whose job it was to promote and defend an expansive view of Executive power as Attorney General, which he did very effectively, and then when he went on the Court, as you can tell from his decision in Youngstown, he took an entirely different view of a lot of issues, in one famous case even disagreeing with one of his own prior opinions, and wrote a long opinion about how he can't believe he once held those views. I think it's very important that

Senator LEAHY. Are you sending us a message?

[Laughter.]

Judge ROBERTS. Well, I'm just saying one reason people admire Justice Jackson so much is that although he had strong views as Attorney General, he recognized, when he became a member of the Supreme Court, that his job had changed, and he was not the President's lawyer, he was not the chief lawyer in the executive branch, he was a Justice sitting in review of some of the decisions of the Executive. And he took a different perspective. And that's,