"If Mukasey cannot say that the President must obey statute, he ought not be Attorney General."

[DeepModem Mom]

NYT op-ed: 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.... 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....

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. The president has no supreme, exclusive or trumping authority to “defend the nation.” In fact, the Constitution uses the words “provide for the common defense” in its list of the powers of Congress, not those of the president....

As a minimum prerequisite for confirmation as attorney general, a nominee should be required to state plainly whether the executive branch or a federal statute is supreme when the president and the Congress, both acting within their constitutional powers, clash. This is especially imperative today, when the executive branch has been making unprecedented claims about the scope of presidential authority. A Senate that did not demand a clear statement on this point would not be doing its job.

If Judge Mukasey cannot say plainly that the president must obey a valid statute, he ought not to be the nation’s next attorney general.

(Jed Rubenfeld is a professor of constitutional law at Yale Law School.)

http://www.nytimes.com/2007/10/23/opinion/23rubenfeld.html?bl&ex=1193371200&en=a48fa1ade1b14bbc&ei=5087%0A

[rodeodance]

1. he already said has Executive powers----for torture.

[tekisui]

2. He pretty much said executive power for ANYTHING.

[Igel]

3. "So long as a statute is constitutional, it is binding on everyone, including the president."

I found this op-ed annoying because of that one sentence.

He manages to cite the reason for the claim at the bottom of the controversy, and then pretend it's not a claim that's been made and, well, it doesn't have to be addressed. But the claim deserves a serious, unbiased, and thorough-going discussion, not dismissal as though the claim has not been made.

I've seen arguments on both sides, and still haven't sorted it all through--every argument I've seen has been so partial, citing such different cases and opinions and not taking on contrary opinions in a serious way, as to be meaningless. Not only can you not trust any of the arguments I've seen, you can't even seriously take them to constitute coherent, adequate, or honest counterarguments.

[annabanana]

14. That quote looks to me like a big fat truck-sized hole...

That will be accepting all traffic until the whole smelly "unitary presidency" load of elephant crap can get cleaned up.

[tomp]

17. could you clarify please?

are you saying it is possible that the president might not be bound by a constitutional statute, that there might be a reasonable argument in favor of the president being exempt from a constitutional statute?

[blondeatlast]

19. That's how I read it too. I'd appreciate some clarification as well. nt

[sutz12]

20. So it depends on what the definition of "is" is?

I find your post to be a load of legalistic crap.

Either the President must abide by statutes, or this is a dictatorship. I don't see much wiggle room or gray area here.

[spanone]

4. k&r

[L. Coyote]

15. ditto

[in_cog_ni_to]

5. And anyone who doesn't know that water boarding is torture, shouldn't be AG either!

The man actually sat at his hearing and said, "IF water boarding is torture, it should be considered illegal." But he wasn't sure if it was considered torture or not.:grr:

The Democrats will confirm him anyway. What's a little torture amongst "terrorists"?:(

[Richard Steele]

6. Yes, obviously. recommended

[slipslidingaway]

7. K&R n/t

[yodermon]

8. This is the spirit of Fascism, people.

This thesis alone disqualifies him. I hope our Senate Dems are up to the task.

[Supersedeas]

9. and even though he can't or won't say it -- some Dems will vote to approve him

[Disturbed]

10. The Dems should reject Mukasey but they won't.

The power brokers of the Dems are complicit with the Busholini Regime in the slide toward a RWing Fascist Police State.

[Major Hogwash]

11. There is nothing that goes outside of the statute - don't they get it - yet?

The Geneva Conventions is not just a law, it is a federal treaty that we signed with other countries!

Waterboarding is against the Geneva Conventions, not just against U.S. law!

It is condemned by all civilized, modern countries!
It is torture!
And Bush does not have the right, legally or otherwise, to break that law!

This makes Bush a war criminal, not just in the eyes of U.S. law, but in the eyes of the international community that are also members of the Geneva Convention!!

[Disturbed]

12. "Waterboarding is against the Geneva Conventions,"

Mukasey could not or would not say if water boarding was Torture. That should disqualify him, period.

[Major Hogwash]

13. I totally agree.

His answer to that question was the most pathetic answer I've ever seen from any potential Attorney General, evah!

This was not a hypothetical that has any leeway to it at all.

[quiet.american]

16. It's all a farce. He'll be confirmed. n/t

[blondeatlast]

18. If Mukasey can't figure out if waterboarding is torture, simple. Let's try it on him and

then he can give his opinion.

Yes, if he's that stupid (remember, Thomas had "no opinion" on abortion and the death penalty--riiiight...), he shouldn't be confirmed and that's a perfectly acceptable way to present the opposition to his confirmation.

[pampango]

21. Does Bush win either way here?

If Mukasey is rejected then the acting AG stays in office and, from what I understand, he is worse than Mukasey. Bush would get to keep a compliant AG, while launching a PR spin that the "Democratic Congress" won't even approve an AG nominee who was sponsored by a Democrat.

On balance I would favor rejecting Mukasey on moral grounds in his refusal to completely ruling our water boarding and other forms of torture. I do see the upside of this for Bush however. If Bush is smart (debatable but possible), he can win politically by proposing "moderate" nominees for AG and having them rejected by congress, especially when he has an "acting" AG who will do his bidding.