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"Certainly" -- Congress can make rules that impinge upon the president's command function. But Roberts says that those laws can conflict with the President's perception of his duties. And those cases may wind up in court.

Roberts: "No one is above the law, and that includes the president."

Leahy: "Can I assume that you would hold the internment of all residents of this country...unconstitutional?"

Click extended entry for an RNC research document on this topic and an Alliance For Justice blog post.

Judge John Roberts: War Powers and Veterans

Allegation: As an Associate White House Counsel, Roberts wrote about a provision in a law governing veterans’ benefits that provided Congress the power to determine the date on which U.S. operations in Lebanon no longer constituted a military campaign.

Facts:

· In 1984, the House Veterans Affairs Committee was considering extending veterans’ preferences to veterans of the U.S. campaign in Lebanon. But the Executive Branch had already announced that those who served in the U.S. campaign in Lebanon would get veterans’ preferences.

· The difference was that Congress’ proposal would have given the legislature the power to set a cutoff date after which service in the Lebanon campaign would no longer have qualified members of the Armed Forces for veterans’ preferences, denying veterans’ benefits to certain servicemen whom the President thought deserved benefits.

· John Roberts wrote to White House Counsel Fred Fielding regarding the bill. He opposed Congress’ attempt to empower itself to set an artificial cutoff date for the “end” of the Lebanon campaign.

· Instead, he wrote that veterans’ preferences should be extended to anyone who served in the Lebanon campaign, as determined by the President.

· In advancing the position that Congress did not have constitutional authority to terminate the Lebanon military operation, John Roberts was acting in the institutional interests of his client, the President.

· The Executive Branch and Congress have consistently taken differing views about the scope of Congress’ constitutional authority over the Executive’s prerogatives to direct military operations. In raising constitutional questions about the proposed legislation, John Roberts was acting appropriately in his role as an attorney representing the institutional interests of the Presidency.

· As John Roberts’ memoranda on this topic make plain, he was advancing a Reagan Administration position on this question. See Memorandum to Fred Fielding, March 5, 1984 (noting that proposed legislation “would have violated INS v. Chada and our position on the constitutionality of the War Powers Resolution”) (emphasis added).

The liberal Alliance for Justice has this analysis:

It’s a one-two punch. Senators are playing hardball. It’s… well, never mind, we just exhausted our capability of coming up with sporting metaphors (we have help with those most of the time). But Senator Leahy, the Ranking Member on the Judiciary Committee just gave Roberts a very thorough questioning. He addressed issues ranging from torture to detainment to the war time powers of Congress. Roberts had some fairly slick answers on those topics.

Then we came to the Gwinnett v. Franklin case. Long (and horrible) story short, Christine Franklin, a high school student was harassed and raped by a coach and teacher at her school. She sued the Gwinnett School District under provisions of Title IX.

During his time in the Solicitor General’s office, Judge Roberts argued for denying Franklin the opportunity to seek damages – the only meaningful remedy available to her. The Supreme Court unanimously disagreed with Judge Roberts. Writing for six justices, Justice White condemned the argument that Judge Roberts advanced for leaving the girl “no remedy at all.”

So Roberts’ arguments in the hearing that this student could have sought “other remedies” such as “back pay” are absurd on their face. Roberts’ approach left her with no avenue, no matter how many different ways he tried to explain “statutory interpretations.” Senator Leahy wasn’t buying it, either. What sort of recompense for her suffering could this girl expect in a law interpreted by Roberts? None.

Posted by Marc Ambinder | 10:22 AM