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.