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.
Follow Stephen Kaus on Twitter: www.twitter.com/stephenkaus
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Let's tell the politicians that we won't give them a dime until they get us out of Iraq and the Congress calls Bush and Cheney before some international forum and charge them with inciting the world in favor of more war and corruption.
These people are dangerous and are way out of step with the rest of our global community. Why are they given a free pass to do whatever they wish with other sovereign nations? Why is the United Nations not telling the US to get out of Iraq?
Mukasey and Bush will get away with it because of people like Schumer who are kissing both of their posteriors.
Just as much as I want Bush and Cheney out of office I want terrified hacks like Schumer, Emanuel and Pelosi sent packing.
Mr. Clinton used the executive privilege card more than any prez in history.
Rubenfeld is correct, the president cannot choose whether a law is constitutional or not. He may break the law then the courts can rule whether it is constitutional or not. If they do rule the law to be constitutional the House can impeach and the Senate can convict him for breaking the law. The bar is set low,
just ask Clinton42.
He wrong because he doing a court arguement compared to protecting the country.
Ilvfredum (See profile | I'm a fan of Ilvfredum)
Mr. Clinton used the executive privilege card more than any prez in history.
Possible, since USURPER bu$h is NOT & NEVER WAS PRESIDENT SINCE THE bu$h/cheney USURPATION HAS NEVER EVER BEEN DUELY ELECTED!
fred...and your proof is....where? and if you have it (which you don't...um..remember the impeachment for lying about getting a blowjob...NOT about WMD's)...what's the point..you are an idiot..
to the author..you write:
"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?"
Oh..you mean...the milktoasts? I've given up on expecting anything out of these people (most of them)... I remember, when Mukasey's name was first mentioned by W..."they" were falling all over themselves with ..hey..this guy just might be above politics...they are so frail...group
alzheimers...they pass the blinders around like a reefer... of course they'll vote to install him..they voted to get us into Iraq..are doing NOTHING to keep W from his WWIII scenario with Iran... WAF...(we are fucked)
We keep hearing this red herring about how the President, as Commander in Chief, can do whatever he wants, and that Congress does not have the power to rein him in.
Bushit. Article I, section 8 says Congress has the power "To make Rules for the Government and Regulation of the land and naval Forces;"
If Congress says that waterboarding is out, waterboarding is out. If Congress says that nuclear weapons are out, nuclear weapons are out. If Congress says we will fight all future wars with marshmallows and coughdrops instead of guns, sell your Defense Industry stocks.
If the Military is a team, the President is just the quarterback; he gets to call the plays. He doesn't get to make the rules.
IT ALSO STATES THAT WARS "ARE NOT TO BE FUNDED LONGER THAN 2 YEARS" = PERIOD...
SO REALISTICALLY THE ENTIRE CONGRESS IS IN DIRECT VIOLATION OF THE U.S. CONSTITUTION BY FUNDING NOT
ONLY 1 WAR BUT 2 WARS BEYOND 2 YEARS...
Mukasey Flunking Civics is exactly why Bush wants him, he's perfect..!
See what I mean..?
Any nominee who thinks the president is above the law cannot support the Constitution. I'm afraid Senator Reid and the other wimps in the Democratic party will confirm him. Democrats have become Democravens.
Just another stake in the heart of democracy, is anyone home?
Mr. Kaus asks: "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?"
Oh, trust me, they'll find a way.
It is obvious that blogger "Simon" is asserting principles that are totally nuts. The President, by this logic, by simply asserting that something is so, can literally do anything he wants. To "protect us!" The Dear Leader is protecting the grateful population of North Korea on this same principle. This is the rule of man, not of law; this is the very definition--root, branch, and dna--of tyranny.
There is an important point that those who argue that the President may refuse to obey a law on the ground that it is unconstitutional seem to forget. In order to have become a law in the first place, not only must it have been deemed constitutional by the Legislative Branch, i.e., the Congress that passed it, but at the time it also must have been deemed to be constitutional by the Executive Branch, because it was not vetoed by the President after review by the Department of Justice. That is why, once it has become a law, only the Judicial Branch can say that it is unconsitutional. As for the notion that a President legally may violate a law, whether in the name of "national security" or on some other basis, there simply is no language in the constitution providing a basis for that proposition.
If Mukasey thinks the President legally can violate a duly enacted federal law, then he is unfit to serve as the "Chief Law Enforcement Officer" of the United States.
Taikan, evidently you hail from the same parallel universe I can't find my way back to.
Mr. Kaus, "Simon," and Mr. Rubenfeld are evidently natives (or naturalized denizens) of _this_ place.
We Synodiporia, however, are part of the Saneworld diaspora--American expatriates living in Bushworld's Urban Archipelago, under the ironclad regime of the Scalia Coup.
So, hail fellow traveler, well met, you pinko dog!
We are aliens here. Let's subvert this Bushworld to the nefarious, superfluous, unsafe-making red-tapery of the U.S. Constitution and to the "rule" of that alien terror-enabler, that disease of weakness and vulnerability called "law."
BUHUHAHAHA!
Even though the "Democratic" zemstvo space-taker-uppers, smarmled by the Stupidosity Virus, are sure (in their zombielike quiescence) to elevate Lord Mukasey to his rightful position above the risible and ludicrous "piece of paper", we still can rally members of the urban retail slaves, illegal helots, indentured debt-coolies and office serfs to our devious and maniacal cause!
but he ACED facism 101.
Funny, I read those comments as kind of a “How long have you been a reckless driver?” kind of statement. In fact I had to read them twice because I was sure I had misunderstood.
So if I can still use my civics and critical thinking am I overqualified from running for congress?
Harry Reid is in charge. With that being the case I will state with 100% certainty that Mukasey will be confirmed. The chance to captitulate to Bush once again is just to big of an opportunity for Senator Reid to pass up.
So, after all the pressure to get Gonzales to resign we get another Attorney General whose positions on issues are like....Gonzales. Bush won't be calling Mukasey up, however, because he won't have to.
This is beautifully written and is so simple in its statement that anyone (well, almost anyone) can understand it all fully. Great job!!!! I have sent it to some media outlets. Let's see if they get it.
In the opinion section of today's Los Angeles Times Jonathan Turley also suggests that a vote for Mukasey is a total capitulation of responsibility for Democratic senators. Strange, isn't it, that for Republican senators to approve a man who approves of torture is fine.
Stephen Kaus is right that Mukasey is dangerous. But he points out there is no line in the sand for any of our politicians.
You know I often wondered how Germany could have succumbed to the Nazis. How could one little pipsqueak like Hitler accrue so much power. He only had a minority position but he became chancellor and took over the country. The opposition forces that should have stopped him totally collapsed.
I figured during Bush's first six years when the Republicans controlled Congress that there would come a time when the people tired of their control and put in an opposition. This they did. But the opposition turned out to be inept. It flees in the face of empty presidential threats. It does not even seem to be able to muster the courage to try to prevent us invading another country.
Is it because it covets power so much it is afraid to look weak and damage Hillary's chances, as if she has any in the general election? For whatever reason, the president no longer has any restraints if he perceives them restraining himself in his view of his duty in this endless Orwellian war.
I'm not saying we will become like Hitler's Germany. All I'm saying is what happened there is more understandable to me. I never thought my increase in understanding would come from America's example.
We (I mean the world) are in the middle of an 8 year object lesson of the quote "those who forget history are doomed to repeat it".
I live in Canada, which gives me the advantage of some detachment and of the american political environment, but allows me to be close enough to gather in all the facts and get a sense of the emotion of the situation as well.
America has all the ingredients of mid-30's Germany. Only difference is that Germany was a medium power trying to regain its former strength. The U.S. is a empire starting to show some decay.
Just wondering, if the Allies had the ability to time travel, would they have gone back in time and killed Hitler in 1936. Who would consider that wrong?
"Naturally the common people don't want war; neither in Russia, nor in England, nor in America, nor in Germany. That is understood. But after all, it is the leaders of the country who determine policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country."
Hermann Goering
This is such a frighten quote. It should be blazened on the mastheads of every newspaper, webpage and tv news program again and again until it sinks into the American mind. We are in real danger here and it isn't from muslim terrorists. Its from a group who seeks tyranical power over this country and all its resources.
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