Lawbreaker in Chief

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.)


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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.


http://www.nytimes.com/2007/10/23/opinion/23rubenfeld.html?_r=1&ex=1350878400&en=20fd06455053c4aa&ei=5088&partner=rssnyt&emc=rss&oref=slogin