'The President Doesn't Stand Above the Law,' Except When He Does

Jacob Sullum | October 19, 2007

I haven't seen the full transcript (the Senate Judiciary Committee has not posted it yet, and Nexis does not seem to have it either), but it sounds like Michael Mukasey's second day of confirmation hearings further diminished the reasons for hoping he has a less expansive view of executive authority than his predecessor did. Here is the New York Times gloss:

He suggested that both the administration's program of eavesdropping without warrants and its use of "enhanced" interrogation techniques for terrorism suspects, including waterboarding, might be acceptable under the Constitution even if they went beyond what the law technically allowed. Mr. Mukasey said the president's authority as commander in chief might allow him to supersede laws written by Congress.

Here is how Mukasey responded to the question of whether the president may authorize an illegal act:

If by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting someone above the law; the president is putting somebody within the law. Can the president put somebody above the law? No. The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution.

To which Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) responded, "I see a loophole big enough to drive a truck through." The crucial question, of course, is how broad "the authority of the president to defend the country" is. At the extreme, it becomes indistinguishable from Richard Nixon's dictum that "when the president does it, that means that it is not illegal."

I think we can all agree that the president would not be bound by a law that, say, purported to put the speaker of the House in charge of the armed forces, which would be clearly unconstitutional. But since the Constitution explicitly gives Congress a role in national defense (e.g., "to declare war," to "make rules concerning captures on land and water," "to make rules for the government and regulation of the land and naval forces," to suspend the habeas corpus privilege "in cases of rebellion or invasion"), the president cannot simply do as he pleases in this area. The treatment of detainees and NSA surveillance of suspected terrorists, both of which the Bush administration characterizes as military matters, seem to be squarely within Congress' authority to regulate.

According to The Washington Post's story, "Mukasey struck a different tone on the second and final day of his confirmation hearing, after earlier pleasing lawmakers from both parties by promising new administrative policies at the Justice Department and by declaring that the president cannot override constitutional and legal bans on torture and the inhumane treatment of prisoners." The shift was marked enough that Leahy wondered aloud whether administration officials had urged Mukasey to take a bolder stance on the question of Congress' authority to restrict the president's actions. Mukasey said he had "received no criticism" from the White House about his first day of testimony.

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|10.19.07 @ 12:42PM|#

Ask your Congressman to co-sponsor the American Freedom Agenda Act, introduced by Ron Paul on October 15th.

Episiarch|10.19.07 @ 12:43PM|#

No, the President stands astride the law like a colossus. In his mind, it seems.

|10.19.07 @ 12:45PM|#

E - you saying he has a wide stance?

|10.19.07 @ 12:53PM|#

"the authority of the president to defend the country"

The authority of who to do what? I'm looking over my pocket copy of the Constitution of the United States (thanks CATO) and I can't find that anywhere. There's the bit about the President being Commander in Chief of the armed forces. I think it's ridiculous to suggest that means he can do what ever the hell he wants as long as he has a 'defense of the country' to hide behind.

"I think we can all agree that the president would not be bound by a law that, say, purported to put the speaker of the House in charge of the armed forces, which would be clearly unconstitutional."

I beg to differ. The President just like every other citizen would indeed be bound by a law like that. It is up to him, of course, to seek an immediate injunction defering the law going into effect pending an appeal to the appropriate court seeking to have the law declared unconstitutional.
I.e. there are procedures even the Prez has to follow, no?

|10.19.07 @ 12:57PM|#

I think we need to start working the term royalist back into our political dialogue.

L'etat c'est moi.

Episiarch|10.19.07 @ 12:57PM|#

E - you saying he has a wide stance?

The widest.

|10.19.07 @ 1:07PM|#

On further convoluted thought ....

What would it take to get the Pres to sign such a law? Attach it to the authorization to got to war with Iran perhaps?

|10.19.07 @ 1:09PM|#

I forgot. He does not need any authorization to go to war.

|10.19.07 @ 1:14PM|#

"If by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting someone above the law; the president is putting somebody within the law."

To which the Congress should have replied...Good enough. Thanks for coming out Mr. Mukasey. We'll call you. NEXT!

|10.19.07 @ 1:15PM|#

The president stands behind the law, repeatedly chucking a basketball at its head, while hecking it mercilessly trying to get it to cry like a little baby girl.

thoreau|10.19.07 @ 1:20PM|#

Filibuster. That's the only answer.

|10.19.07 @ 1:27PM|#

Filibuster. That's the only answer.

Interim appointment. That's the only response. Shit, I despise GWB!

|10.19.07 @ 1:37PM|#

Mukasey is right. At a certain level, law is superseded by politics. The President can go and do things that are illegal, and, depending on what he does, Congress can choose to more directly intervene if it objects. Sure, it's a loophole big enough to drive a truck through, but Congress can close the loophole whenever it wants.

And by 'more directly intervene,' I mean impeachment and removal from office or threats to that effect.

|10.19.07 @ 1:38PM|#

de stijl,
The Great Santini?
Nice one.

|10.19.07 @ 1:42PM|#

At the rate this thing seems to be going, Mukasey (or whoever) is going to have a very short tour as AG. Good resume builder, I guess.

In any event, the uncomfortable position of the AG as effectively the president's consigliare (see Reno, Janet) is a nasty little separation-of-powers problem that will long outlast Bush & Co. Of course Mukasey has to parrot whatever Bush and his top advisers think. Bush is his putative boss.

|10.19.07 @ 1:48PM|#

The interim appointment is abused. It does not say what most think.

"The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

The Pres has the power to appoint someone when a vacancies happens DURING the recess.

|10.19.07 @ 2:59PM|#

I think we need to start working the term royalist back into our political dialogue.

I suspect Hillary!'s inauguration will take care of that.

More to the point, I would say that, given its bad habit of exempting itself from laws that it passes, Congress isn't in the best position to point fingers here.

|10.19.07 @ 3:45PM|#

Martin,

"I think we can all agree that the president would not be bound by a law that, say, purported to put the speaker of the House in charge of the armed forces, which would be clearly unconstitutional."

I beg to differ. The President just like every other citizen would indeed be bound by a law like that. It is up to him, of course, to seek an immediate injunction defering the law going into effect pending an appeal to the appropriate court seeking to have the law declared unconstitutional.
I.e. there are procedures even the Prez has to follow, no?

The President has the obligation to follow the law, and the Constitution stands as the supreme law, above any statute. If the President shouldn't follow an unconstitutional law. I don't know of any requirement that he seek a court review first. In fact, the issue wouldn't be ripe for review until he actually refused to allow the House speaker to take control of the Armed forces.

|10.19.07 @ 3:56PM|#

How does the President know it's unconstitutional? He is not the one to decide.

|10.19.07 @ 4:04PM|#

Why can't the President independently decide whether a law is constitutional or not? As I see, each branch has a responsibility to do that. The constitution itself doesn't give that responsibility to only one branch.

|10.19.07 @ 4:05PM|#

The President has the obligation to follow the law, and the Constitution stands as the supreme law, above any statute. If the President shouldn't follow an unconstitutional law. I don't know of any requirement that he seek a court review first. In fact, the issue wouldn't be ripe for review until he actually refused to allow the House speaker to take control of the Armed forces.

The role of the Supreme Court as *sole* interpreter of the Constitution is not as strongly embedded as you might think. The Supreme Court has been extremely reluctant to get involved in power struggles between the legislative and executive branches.

|10.19.07 @ 4:10PM|#

ChrisO,
I realize that. I was expressing that point of view in my comment.

""Why can't the President independently decide whether a law is constitutional or not?"""

The President makes the determination when he signs or vetos a law.

We do not have a system of government where the President can strick down law at a whim.

But if Mukasey truly believes the Constitution is what the President must follow, he would never accept the Bush's views of the 4th and 5th Amendments.

|10.19.07 @ 4:20PM|#

TrickyVic,
That would imply the President is bound by the unconstitutional acts of his predecessors. I don't agree. He has an obligation to not follow laws that are unconstitutional. If others disagree, then they can go to the Supreme Court or Congress can intervene. That's seems essential to a functioning system of checks and balances.

|10.19.07 @ 4:35PM|#

Where is it written that the President becomes a super citizen? You nor I have the right to disobey uncontitutional laws. I firmly believe that the founding fathers expected the President to follow the law in the same way every citizen must follow the law.

If the President says a torture law is unconstitutional, does that mean you and I can torture? The President is not deeming laws as unconstitutional, he's saying he has a special right to ignore the law under the Constitution which I do not believe is true.

|10.19.07 @ 4:37PM|#

Here's an article about torture producing bad intelligence.

http://news.yahoo.com/s/livescience/20071019/sc_livescience/torturehasalonghistoryofnotworking

Of course bad intel has never been a problem for this administration.

You nor I have the right to disobey uncontitutional laws.

Not so sure about that.

Leaving aside the moral and ethical dimension, there is a legal argument that an unconstitutional law is not a law at all, but is void ab initio and consequently there is no obligation to obey it.

|10.19.07 @ 4:40PM|#

Nah, Show me where in Article 2 of the Constitution is the basis of your belief?

I am not commenting on the specific practices of this President. I'm talking generally.

The President is quite different than you and me in the constitutional arena. He is a constitutional officer given the authority to execute the laws. A statute that violates the constitution isn't a valid law, and he therefore he shouldn't follow it. If the President says a torture law is unconstitutional, then yes, I think you can torture (assuming your acts don't violate state laws, which they would). Since he controls whether you will be prosecuted, you would be safe.

|10.19.07 @ 4:44PM|#

TrickyVic,
There is no provision in any part of the constitution explicitly assigning the right to any branch to declare a law unconstitutional. If that is the standard, then the Supreme Court can't do it either and we have to follow every law enacated.

|10.19.07 @ 4:45PM|#

RC,

Yeah, I'm sure we'll be hearing a lot of talk about royalty if Clinton wins. Sadly, it will be about sequins and automobiles, not how the government treats us. :-(

Nah,

I think you've got that backwards. If the president wants to ignore the law, he can go to court to get the law overturned. The default is that the president, and everyone else, is required to follow the law, and the burder of proof falls on those who wish to disobey it.

|10.19.07 @ 4:49PM|#

Dean, that won't work without a third party review. Which is kind of my point.

|10.19.07 @ 4:53PM|#

""There is no provision in any part of the constitution explicitly assigning the right to any branch to declare a law unconstitutional. If that is the standard, then the Supreme Court can't do it either and we have to follow every law enacated."""

Not exactly true. Congress has the ability to void an old law by passing a new one. But I get what your driving at. But then what is your basis for your belief? Precedence? That would clear go to SCOTUS.

|10.19.07 @ 4:56PM|#

I should have said clearly.

|10.19.07 @ 5:29PM|#

TrickyVic,
I think the textual hook is the provision to "take care that the laws be faithfully executed." Like I said, I don't think any one branch has an exclusive right in this area. I don't deny the Supreme Court's rights either (and when you carefully read the court's opinions on this, they don't claim an exclusive right either). I realize this view can make the law murky at times. Btw, I am hardly alone in my view. Many constitutional scholars have a similar view.

|10.21.07 @ 7:54PM|#

and when you carefully read the court's opinions on this, they don't claim an exclusive right either

they came pretty close in Cooper v. Aaron.

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