No to Mukasey

Hard to believe that one could look back on Ashcroft's tenure as the 'good ol' days'.

When I heard him say that, it sounded disconcerting. In the context, and given the Bush Administration's general ideas about the President's authority as Commander in Chief, it suggested to me that he was saying that Congress could not place limits on the power of the President. It sounded like Andrew Jackson's "Let John Marshall enforce his decision." I'm sorry, but that's not the attitude we want from an attorney general. I would vote against him.

Yeah, usama. Ashcroft had too much integrity for these folks, even though I disagreed with him politically on most things.

Usama and Alicia have a point that tells us a lot about the Bush Administration: Bush's recent appointments in the DoJ have actually made John Ashcroft look good in comparison. An incredible feat, considering that Ashcroft was a Neanderthal. But, he was an *honest* Neanderthal, who cared about the rule of law and would never assent to torture or unchecked executive power. Ergo, the rest of Bush's staff couldn't stand him.

Incredible.

"I realize the Al Qaeda threat isn't on the order of the Civil War . . . ." Simon, you pretty much shot your whole argument right there.

And that's even without addressing your assumptions that a) Bush is as trustworthy as Lincoln; or b) that if Lincoln did it then it must be OK for any President to do it under any circumstances; or c) that it's OK for a lawbreaking President to surround himself with hired sycophants whose only job is to construct legal arguments that rationalize said lawbreaking (something Lincoln did not do).

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.

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?

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.