Yale Law School professor Jed Rubenfeld comments on the confirmation testimony of Michael Mukasey.
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. …
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.