Mukasey Flunks Grade School Civics and Should Be Rejected

A kafuffle has broken out between Yale Constitutional Law Professor Jed Rubenfeld and self-righteous right-wing blogger "Simon" over whether Attorney General nominee Michael B. Mukasey said (1) the president has the right to violate a Constitutional law if he believes that he is entitled to do so in the name of national security (Rubenfeld) or (2) the president has the power to ignore a statute as "unconstitutional" if the president justifies the violation under under Article II (Simon).

Ann Althouse, now apparently anointed with judicial powers, declares, "Decision: Simon." She is incorrect.

Rubenfeld says that "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."

This is a side-show argument about semantics, but, in fact, Simon is wrong regarding this under-card and Mukasey is wrong in the main event concerning presidential power. By defining any law that limits the president from doing whatever he wants in the name of national security as Unconstitutional, Mukasey has stuffed a rabbit into the wrong hat, which is exactly what Rubenfeld has identified. If one accepts the premise that from Marbury v. Madison through Hamdan v. Rumsfeld (the military tribunals case) , the Supreme Court has ruled that "laws trump presidential authority, not the reverse" and "the President must comply with a valid federal statute," then a law is not Unconstitutional just because the President says it is.

In fact, even if one recognizes the occasional presidential power to violate a law in the name of national security, the law would be Constitutional and the issue would be whether the case presents one of the extraordinary circumstances where the president can ignore it.

Simon, because he accepts the subversive argument that any law is Unconstitutional if the president can say he needs to violate it to protect the country, cannot understand Rubenfeld's point, which is that this definition cannot be accepted and that the Attorney General must apply the Constitution as it has been interpreted for over two centuries, not the ersatz Constitution of John Yoo and Alberto Gonzales.

How can the Democratic Senators confirm this man who has been unwilling to tell us that he will draw a reasonable line around presidential power? Agreed, we need a functional Justice Department, but it is indicative of how outrageous Bush's previous Attorneys General have been that Mukasey is considered a moderate and Bush appears to be about to get away with this. The Senate should approve an Attorney General when Bush nominates someone who understands the checks and balances we learned about in grade school.

I am always reminded of Jeff Toobin's tale about how Bush won Florida because James Baker played hardball and Warren Christopher played beanbag in the name of responsibility. Bush should be forced to be responsible and send up a qualified nominee.

Or we should award the Democrats in the Senate the Joe Lieberman Medal.

Comments

[TommyMcCarthy]

IF ONLY THERE WERE STILL SUCH A THING AS "GRADE SCHOOL CIVICS'...........tm

[NATIONALSECURITY4US]

CONTINUED

1 -- The Senate should pass a law that gives the power 2 the Senate 2 De-Confirm any person the Senate Confirmed - 4 whatever reasons that the Senate feels is suitable/appropriate...

The time 4 head-games/political bullshit must come 2 a end - this is a way 2 ensure/restore accountability 2 those appointed 2 higher offices...

2 -- Deals with the INDEPENDENT JUDICIARY - as I understand the U.S. Constitution as I read it
- THE BIGGEST FLAW THAT I SEE OUR FORE-FATHERS MADE IN CRAFTING THIS DOCUMENT - WASN'T HAVING THE VISION 2 SEE WHAT WE'VE ALL SEEN IN THIS PRESIDENCY ALONE - BIG-TIME...

OTHER ADMINISTRATIONS' HAVE USED IT 2 THEIR ADVANTAGE AS WELL IN THE PAST...

Sir, it's hard 4 the Law Enforcement Agencies 2
even investigate/ever prosecute any members of the Executive Branch when it'd be their boss they'd be going after 2 INVESTIGATE/PROSECUTE..

America's bigger than one man/a specific family
& no one is above the LAW - PERIOD...

I PROPOSE THAT CONGRESS RATIFY THE CONSTITUTION
SO THAT THE JUDICARY BRANCH IS TOTALLY SEVERED & INDEPENDENT FROM THE EXECUTIVE BRANCH THIS WILL SOLVE A SLEW OF PROBLEMS IN & OF ITSELF IF
CONGRESS WOULD GO 2 THE EXTREME 2 WEED OUT CORRUPTION & STOP CORRUPTIBLE INFLUENCES FROM ARISING IN THE FIRST PLACE...

SCOTUS got involved in a Presidential Election I believe had no right at all whatsoever 2 intervene...

They also sided with the President on most issues - some favorable & some not...

How can the Justice Dept./F.B.I. or any other Law Enforcement Agency investigate a matter of importance criminally -- when the President can
order it disavowed or rescinded as was the case
when O.P.R. was on the verge of investigating something that the WHITE HOUSE / EXECUTIVE BRANCH STOPPED DEAD IN ITS' TRACKS FROM PROCEEDING FORWARD...

I do believe that I made my point crystal clear
Senator, 4 the Senate 2 possibly consider severing the JUDICIAL BRANCH FROM THE EXECUTIVE
BRANCH IMMEDIATELY...

http://360.yahoo.com/caspereraser1

[NATIONALSECURITY4US]

I POSED THIS SCENARIO 2 SEN. LEAHY VIA E-MAIL..

http://www.fbi.gov/page2/may04/bolo052604.htm

Bottom left = F.A.M.
Bottom right = A.K.G.

Senator, the reason 4 the link is 2 provide 4 a
hyperthetical question that was really a REALITY in life that has truly occurred...

QUESTION = Would the Attorney General if he found out that members of the Executive Branch committed crimes -- WILL HE BE WILLING 2 MAKE THE CALL -- 2 the Secret Service or whatever appropriate LAW ENFORCEMENT AGENCY -- 2 ARREST whoever it was that needed 2 be arrested -- BE IT THE PRESIDENT/THE V.P./ANY OTHER MEMBER OF THE PRESIDENTS' CABINET/ANY OTHER EXECUTIVE BRANCH OFFICIALS...

THAT SENATOR -- IS THE TYPE OF U.S.A.G. THAT'S DESPARATELY NEEDED IN AMERICA TODAY - ANYTHING LESS IS CRIMINAL...

Sir, A INDEPENDENT JUDICARY IS A MANDATORY NECESSITY IN TODAYS' TIMES...

Senator, it isn't any secret that time & time again -- those who have come before the Senate 2 be Confirmed will do & say whatever 2 be Confirmed & not long after many have been Confirmed they do the complete opposite of what
they swore they'd do/promised they'd do 2 be Confirmed...

Now I will offer you 2 proposals 2 fix these problems that have plagued the American political structure 4 so long now...

[BGonia]

Looks like the Dems are full of hot air--they raise the issue but then they will capitulate. I agree they should vote NOT to confirm. They should in fact be in the process of impeaching both Bush and Cheyney. It is inexplicable to me why they put this off the table. Only through the impeachment process can the powers of the Imperial Presidency be fitted back to Constitutional size. This issue involves more than confirmation of Mukasey.

[Rothgar]

Mukasey bases his position in part on the false but common GOP statement that the President is responsble to: "protect and defend the people of the United States". If he does make this oath he has violated the text of Constitutionally proscribed oath for the office of President.
In Article 2, Section 1 Paragraph 8 or so (my copy does not have paragraph numbers) the oath of office for the President is stated as:
"Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
While the President is invested with Executive power and is the Commander in Chief these tasks are in parallel and second to his primary responsibility which is protecting the Constitution. GD piece of paper according to the present resident of 1600 Penna Ave.

[NATIONALSECURITY4US]

AND HE TOTALLY VIOLATED THAT BIG TIME = TREASON..

ON VALERIE PLAME BEING OUTED + HERE...

READ ALL ABOUT IT HERE AT:

http://360.yahoo.com/caspereraser1

[Texashogfan]

Remember-- the trade-off for confirming Mukasey is that the committee gets documents they've subpoenaed (and been ignored). So, now they're over the barrel that they have so kindly provided.

[Stephen Kaus - Huffpost Blogger]

I have never heard that, Where did you read it?

[BoulderSue]

I've got my handy-dandy pocket Constitution right next to my computer and just read and re-read Article II (Executive Branch). There are not quite three pages, and about two of them talk about how the executive shall be chosen. The third page goes into the powers of the Executive. There is not word one about that branch ignoring the Constitution in case of emergency or any other case. Given this aministration's predilection for ignoring the law in general when it it feels like it, maybe the post of Attorney General should be left vacant until we get a new president(there are plenty of vacancies already from what I understand) and wait for someone who can pick an AG who can read the Constitution (or read at all?). Mukasey's mistake(?) also makes me worry more than ever about whether we will have an election next year if there is some sort of dire emergency before the election. Remember that Rudy tried to call off the city elections on 9/11? I would not have believed I would be writing this seven years ago...

[Hasapiko]

One must seriously ask the question why the Dems are so reluctant to challenge Bush. Are they total wimps, as many say, or is it because in reality they and the Repugs are two sides of the same coin, both parties reluctant to push too hard because it might break "the system". Will the Dems get us out of Iraq, or did they secretly sign on to Cheney's theory that the invasion and occupation of Iraq was a strategic necessity driven by the need to protect the West's energy sources? Will they push to limit executive power, or do they understand that the next prez - probably Hillary - will want it just as much in order to perpetuate the "war on terror"?

[Susanholmes]

"Agreed, we need a functional Justice Department"

oh, i dunno. we've been doing without one for almost seven years...

[wrabbitt]

does anyone know where the americans went?

[Ravenlea]

And look where that has gotten us...

[Dansden]

If Mukasey is nominated by BUSH then he has ALREADY received his 'marching orders' from the DECEIVER-IN-CHIEF!

Which menas that the U.S. Constitution means NOTHING TO THIS ADMINISTRATION!

Why confirm another U.S. Attorney General who will NOT follow the U.S. Constitution? DUH???

[Dansden]

Why confirm an ATTORNEY GENERAL OF THE U.S. if he doesn't follow the U.S. CONSTITUTION? DUH???

And this is difficult to understand
...BECAUSE WHY???

[typanda43]

Insisting that Mukasey restate his beliefs so that they recognize that we are a nation of laws would be nothing more that a cop-out by timid senators. Unless they can be assured that he will change his mind, and of course that is impossible, they must vote no.

[old73]

typanda43 is absolutely correct.
The 'thoughtful' lout, who pauses to ponder every question, GAVE his considered answer.
Game over, REJECT HIM.

Next nominee...

[vote4kucinich]

Wouldn't the country be better off if the position was left vacant for the rest of Bush's term?

[janmB]

This next attorney general is just a continuation of the trend in the republican party which is broken. Every current candidate for the presidency is "authoritarian" in an extreme and unAmerican way in earlier decades been "corrected" by the political system, but the Republicans, have broken the political system precisely so that it won't correct them.

[cowboyneok]

Face it, our Constitution isn't worth the paper its printed on anymore. The Bush Administration has used it as toilet paper!

[BARRISTER]

A retraction of the offending statement does not change Mukasey's beliefs and will not prevent him from doing exactly that bull he preaches. Voting No on his nomination will.