(March 2, 2026)

Alito responded. “The president has the power of the commander in chief. I think there has been general agreement, and (previous) 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.”

Alito’s answer is no longer a historical artifact.

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In addition to Alito, Chief Justice John Roberts has joined the attack.

In a 1984 memo entitled “War Powers Problem,” Roberts — then an associate in Ronald Reagan’s White House counsel’s office — advised the Reagan administration to oppose legislation extending tax benefits to veterans who served in Reagan’s unauthorized military deployment to Lebanon. Roberts argued that the administration should oppose the bill simply because it mentioned Congress’s constitutional power to declare war.

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Justice Brett Kavanaugh has seemingly come down on both sides of the issue regarding limiting presidential war power. In a 2015 Appeals Court ruling, the conservative judge wrote that “in justiciable cases, courts should not hesitate to enforce constitutional and statutory constraints on wartime activities.”

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Additionally, Justice Clarence Thomas has also questioned whether Congress has the power to rein in presidential power related to national security. In a dissenting opinion for a 2004 Supreme Court case, Thomas wrote that the Constitution gives the president “primary responsibility” over national security and foreign policy.