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Lawbreaker in Chief—A Commentary by Jed Rubenfeld

The following commentary was published in The New York Times on October 23, 2007.

Lawbreaker in Chief
By Jed Rubenfeld

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.

It is true that a president may in rare cases disregard a federal statute — but only when Congress has acted outside its authority by passing a statute that is unconstitutional. (Who gets the last word on whether a statute is unconstitutional is something Americans have long debated and probably will always debate.)

But that is not what Judge Mukasey said. 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.

According to Judge Mukasey’s statement, as well as other parts of his testimony, the president’s authority “to defend the nation” trumps his obligation to obey the law. Take the federal statute governing military commissions in Guantánamo Bay. No one, including the president’s lawyers, argues that this statute is unconstitutional. The only question is whether the president is required to obey it even if in his judgment the statute is not the best way “to defend the nation.”

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.

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.

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.

Even President Bush’s Justice Department, added the court, “does not argue otherwise.” But evidently Attorney General Mukasey would argue otherwise — he just did.

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.