Alito on the Use of Force (and on John Yoo) (Updated)

Stunningly, Sen. Joe Biden has actually asked a good question: Can the President invade Iran without a declaration of war by Congress? (He claims that Professor “Ho” makes this argument. I assume he means Professor John Yoo of Berkeley).

Somewhat surprisingly, Alito gives Biden a fairly complete answer, even though this will almost certainly come before the Court soon. He explains that the “declare war” clause must mean something, he points to The Prize Cases that seem to recognize some independent presidential power to use military force. He also points to the political question doctrine, and then backs off and says he would have to study this more (he also says that he hasn’t read John Yoo, which is another shocker!)

Anyway, I will post the transcript of the exchange when it is available.

Here is the full exchange:

BIDEN: . . .But having said that, let me go to an area that I hope you’ll engage me in. And it goes to executive power. I have had the dubious distinction, because of my role in the Judiciary Committee and on the Foreign Relations Committee, in the last three or four times forces have been used by a president, to be the guy in charge of — at least on my side of the aisle — drafting or negotiating the drafting of the authority to use force, whether it was President Clinton, before that President Bush and even before that the discussion back on Lebanon, with President Reagan, et cetera. So it’s something I’ve dealt with a lot. Doesn’t mean I’m right about it, but I’ve thought a lot about it. And now there is a school of thought that’s emerging within the administration that is making — not illegitimate — an intellectually thought-out claim that the power of the executive in times of war exceed that of what I would argue a majority of the constitutional scholarship has suggested.
BIDEN: And the fellow — a very bright guy — who is referred to as the architect of the president’s memorandum on the ability of the presidents to conduct military operations against terrorists and nations supporting them is Professor Yoo. He’s written a book called The Powers of War and Peace. And he makes some claims that are relatively new among the constitutional scholars in his book. And he had urged, when he was at the administration, the president had these authorities. For example, he says that, The framing generation well understood that declarations of war were obsolete. He goes on to say, Given this context, it’s clear that Congress’ power to declare war does not constrain a president’s independent and plenary right, constitutional authority over the use of force. And he goes on and he argues, as you well know this argument — I mean, not from your court, just as an informed, intelligent man — there’s a great debate now of whether or not the administration’s internal position is correct. And that is, the president has the authority to go to war absent congressional authorization. And it was a claim made by Bush I and then dropped. Bush I argued that the only reason the declare war provision is in the Constitution is to give the president the authority to go to war if the president didn’t want to. That was the claim made. Similar claim made here, so I want to ask you a question. 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…
BIDEN: If I can interrupt, Judge, since I’m not going to have much time. The war powers resolution is a legislative act. I don’t want to get into that. I’m talking about the war clause. And the administration argues and Yoo argues that, quote, I do not think the president is constitutionally required to get legislative authorization for launching military hostilities. And that’s a pretty central question. That means, if that interpretation is taken, the president could invade — and maybe there’s good reason to — invade Iraq — excuse me, invade Syria tomorrow or invade Iran tomorrow without any consultation with the United States Congress. And that’s a pretty big deal. Up to now, Fisher and Henkin and most of the scholarship here has said, No, no, no. The president’s authority falls into the zone where he needs it for emergency purposes, where he doesn’t have time to consult with the Congress. But you seem to be agreeing with the interpretation of the president, Professor Yoo, that says, Nope, the president has the authority, if he thinks it’s necessary, to move from a state of peace to a state of war without any congressional authorization.

ALITO: I hope I’m not giving you that impression, Senator, because I didn’t mean to…

BIDEN: Oh, OK, maybe you can…

ALITO: … say that. I have not read Professor Yoo’s book or anything that he or anyone else has written setting out the theory that you’ve described.
ALITO: 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: You and I both know that’s a different issue. The political question doctrine is a different issue than whether or not you think that — I’m asking you as a citizen whether you think that as the administration is arguing — for example, it argues that the case is made, and I’m quoting, that the Constitution permits the president to violate international law when he’s engaged in war. It just states it flatly. That’s what the memorandum of the Justice Department states flatly. The president has that sole authority. He argues the Congress would have that authority as well, just violate international law. He goes on to argue, as does the memorandum argue — this is this administration’s position, so that’s why it’s relevant. It says that the president may use his commander in chief and executive power to use military force to protect the nation, subject only to the congressional appropriations. And that means that the argument the administration is making is the only authority that Congress has is to cut off funds. Let’s say we didn’t want the president to invade Iran.
BIDEN: The administration argues we could pass a resolution saying that, You have no authority to invade Iran, and the president could the next day invade Iran. Our only recourse would be to cut off appropriations. But, as you know, there’s no way to cut off specific appropriations. You have to cut off appropriations for the entire military, which means it’s a totally useless tool for the Congress in today’s world. You know? You can’t say, well, I’m going to cut off only the money for the oil that allows the steaming of the ships to get from the East Coast to the Mediterranean sea and/or to the Persian Gulf. 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…

BIDEN: OK.

ALITO: … 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.