Breaking the Law

Pushed for time, I'm just going to repost all-but verbatim the comment I wrote in response to Spencer Ackerman's post about Mukasey, Feingold and FISA, and we'll hash out any wrinkles in the comments if you like.

Let's set aside the obvious point that Feingold is far off base talking about what the Supreme Court held in Youngstown: the court's opinions contain both holding and dicta, but Justice Jackson wrote a concurring opinion in that case, and concurrences (like dissents) are dicta, not holding.

But in any event, the more important issue here is that what you're talking about is not "breaking some laws," Spencer, but conflict of laws. If you have two statutes that are irreconcilably in tension (or, for that matter, a statute and a treaty that can't be reconciled), which prevails? Well, we know the answer to that, that's easy: the last in time rule, leges posteriores priores contrarias abrogant. But there are other kinds of conflict of law, too. The important thing to keep in mind that while the President can't ever violate the law, the law isn't simply what's in the statute book. The Constitution is law, too - that's the central point of Marbury v. Madison and two centuries of judicial review. Remember the Supremacy Clause and what it tells us about what constitutes federal law: "This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land...." (Emphasis added.) Statutes that aren't made within the bounds of the Constitution are void - that is, Congress can make statutes that aren't law. Which is exactly what happened in Marbury (and numerous cases since): Congress passed a statute, the Judiciary Act, but the statute in part exceeded the scope of Congress' lawmaking power, which meant that that part of the statute wasn't law and thus wasn't enforcible as law.

The argument made by some with regard to FISA - regardless of the argument's merits - is not that the President can break the law, but that to a greater or lesser extent, the FISA statute is not the law, that it exceeds Congress' power vis-a-vis the Article II powers of the President. Now, of course, you can argue with that, and you can make the argument that it's wrong. But make the argument - rejoin the argument actually being made, rather than twisting it for rhetorical effect.

Post facto:
Who can sign? (10/19/07)
Breaking the Law, redux (10/23/07)