In my traveling last week, I was unable to comment on the Mukasey hearing. I was appalled to hear the judge say that the president has the right to decide which laws he's going to obey, under certain circumstances. Jed Rubenfeld is right:
It is true that a president may in rare cases disregard a federal statute — but only when Congress has acted outside its authority by passing a statute that is unconstitutional. (Who gets the last word on whether a statute is unconstitutional is something Americans have long debated and probably will always debate.)But that is not what Judge Mukasey said. What he said, and what many members of the current administration have claimed, would radically transform this accepted point of law into a completely different and un-American concept of executive power.
According to Judge Mukasey’s statement, as well as other parts of his testimony, the president’s authority “to defend the nation” trumps his obligation to obey the law. Take the federal statute governing military commissions in Guantánamo Bay. No one, including the president’s lawyers, argues that this statute is unconstitutional. The only question is whether the president is required to obey it even if in his judgment the statute is not the best way “to defend the nation.”
If he is not, we no longer live under the government the founders established.
Rubenfeld said Mukasey must "retract" this statement before getting the approval of the Senate committee. Nope. I say they shouldn't vote for him, period. This country cannot afford an attorney general who believes that executive power should be expanded so greatly. I don't care if the office sits vacant until Bush is out of office. The line has to be drawn by the Senate.
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Simon:
Without saying whether it was right or wrong in the historical context, Lincoln was also trying to assure his and his government's physical safety.
Otherwise, Washington, DC would have been surrounded by Confederate territory, and the new Republican government obviously would have had to flee through hostile areas.
"I don't care if the office sits vacant until Bush is out of office."
Well AG is a useless management position anyway. Maybe we should just eliminate it altogether.
Pauli
Larry: Yes - that's exactly my point!
Maryland's secession (highly possible had Lincoln not unilaterally suspended Habeus Corpus and arrested legislators suspected of Southern sympathies without charge) would have made Washington, D.C. untenable. The United States government would have faced flight, capture, or collapse. Southern independence -- and slavery's triumph -- would have been all but assured.
Lincoln acknowledged that the laws he violated were perfectly constitutional -- Habeus Corpus is arguably the foundation of all liberty. But he insisted that the President's duty to preserve and defend the nation is a higher obligation than any other law. That seems to be exactly what Mukasey is saying. If Mukasey is wrong in principle, why wasn't Lincoln also wrong?
First time reader, Rod.
Is this post an anomaly, or are you actually a current conservative who believes in obeying the Constitution? This idea seems to have fallen out of favor with today's "conservatives."
If the latter, I should come here more often
Simon:
One thing you said is correct. Lincoln did suspect the writ of Habeas Corpus. However, the Constitution explicitly allows suspension of Habeas Corpus in times of "insurrection", which precisely describes the Civil War. On the other hand, I think Mr. Mukasey did not add any such qualifier to his testimony. Rather, his position is that the President can unilaterally designate validly enacted laws as "unconsitutional", even if he votes to enact them. This is violative of the Constitution. The only was the Constitution allows the President to "ignore" a validly enacted law is to veto it. If the law is signed by the President, or a veto is overridden, the President is afforded no Constitutional ability to "ignore" such a law, unless the courts rule that the law violates the Constitution. It's a very straightforward legal concept that only a few fringe lawyers contest. Most conservatives I know (and, as a corporate lawyer, I know quite a few) agree with my analysis.
One additional note. If a Democrat is elected President in 2008, it is a guarantee that the "Unitary Executive" devotees supporting this very fringe (and, I believe, unconstitutional) view will suddenly discover their distaste for their theory. You wait and see.
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