Lawbreaker in Chief

[ProSense]

Op-Ed Contributor

Lawbreaker in Chief

By JED RUBENFELD
Published: October 23, 2007

New Haven

AT his confirmation hearings last week, Michael B. Mukasey, President Bush’s nominee for attorney general, was asked whether the president is required to obey federal statutes. Judge Mukasey replied, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”

I practiced before Judge Mukasey when I was an assistant United States attorney, and I saw his fairness, conscientiousness and legal acumen. But before voting to confirm him as the nation’s chief law enforcement officer, the Senate should demand that he retract this statement. It is a dangerous confusion and distortion of the single most fundamental principle of the Constitution — that everyone, including the president, is subject to the rule of law.

<...>

If he is not, we no longer live under the government the founders established.

Under the American Constitution, federal statutes, not executive decisions in the name of national security, are “the supreme law of the land.” It’s that simple. So long as a statute is constitutional, it is binding on everyone, including the president.

<...>

Beginning with Marbury v. Madison, the Supreme Court has enforced the principle that laws trump presidential authority, not the reverse. In 1952, the court ruled that President Harry Truman’s takeover of the nation’s steel mills — justified by Truman as necessary, because of a threatened steelworkers’ strike, to defend the nation in its armed conflict in Korea — was unconstitutional because the president had flouted federal statutes. And in Hamdan v. Rumsfeld, the Supreme Court’s recent decision on military commissions, the justices reaffirmed that the president must comply with a valid federal statute.

more

[ProSense]

1. The WSJ Law Blog responds to Rubenfeld's comment

by attacking him:

The Law Blog knows that envy is a deadly sin, but we’re a bit green-eyed over Jed Rubenfeld. As if being a young, handsome constitutional law professor at Yale weren’t enough, he also got paid serious money to write a novel. A year ago, we told you about “The Interpretation of Murder,” his murder mystery for which he received an $800,000 advance. Though the book didn’t meet publisher’s expectations, still, Rubenfeld has got it going on.

The rest of the post is an excerpt of Rubenfeld's op-ed.