Breaking the Law, redux

Prof. Jed Rubenfeld has this op/ed in the NYT today (HT: Howard) taking issue with something he thought he heard Judge Mukasey say during the Senate Judiciary Committee Hearings last week, and it ties in nicely with a short little post I wrote last week about Presidential obligations vis-à-vis the law and the difference between the law and statutes.

According to Rubenfeld, during last week's Mukasey hearings, the titular nominee "was asked whether the president is required to obey federal statutes," whereupon Mukasey told the committee that the answer “depend[s] on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.” One thing that all should be able to agree on is that while the President must obey the law, not all statutes are the law (that's the central point I was making in my post last week), which Rubenfeld doesn't question, writing that "a president may ... disregard a federal statute ... when Congress has acted outside its authority by passing a statute that is unconstitutional." But he goes on to assert that Mukasey wasn't referring to this axiomatic principle of Constitutional law - "that is not what Judge Mukasey said." Mukasey, as Rubenfeld tells it, said that "the president’s authority 'to defend the nation' trumps his obligation to obey the law," and therefore, "the Senate should demand that [Mukasey] 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." "So long as a statute is constitutional, it is binding on everyone, including the president," says Rubenfeld, and "[t]he president has no supreme, exclusive or trumping authority to 'defend the nation'"; the reader is supposed to infer from all this that Mukasey advanced the latter position rather than questioning the Constitutionality of an applicable statute.

If Mukasey had actually said that, then I might be inclined to agree with Rubenfeld. Did he?

When someone is answering a question, knowing what they're saying is often conditional on knowing the context: what the question was (to illustrate with an extreme exmaple, remember Prof. Chin's experience being interviewed by the Daily Show, where producers cut together footage of the interviewer asking one question to footage of Chin answering an entirely different question?). So let's go to the transcript:

[LEAHY:] where Congress has clearly legislated in an area, as we've done in the area of surveillance with the FISA law, something we've amended repeatedly at the request of various administrations, if somebody -- if it's been legislated and stated very clearly what must be done, if you operate outside of that, whether it's with a presidential authorization or anything else, wouldn't that be illegal?

MUKASEY: That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.

LEAHY: Where does the president get that authority? I thinking of the Jackson opinion and others. Where does he get the authority if it's clearly enunciated what he can do, law that he signed, very clearly enunciated? I mean, the president say, This authority, I'm going to order the FBI to go in and raid 25 houses because somebody told me they think someone's there. We're not going to wait for courts, we're not going to do anything else. There's no urgency, but we'd just kind of like to do that.

MUKASEY: We'd kind of like to do that is not any kind of legitimate assertion of authority. And I recognize that you've posited the case that way for a reason. But the statute, regardless of its clarity, can't change the Constitution. That's been true since the Prize cases. And it was true before that.

LEAHY: Can a president authorize illegal conduct? Can the president -- can a president put somebody above the law by authorizing illegal conduct?

MUKASEY: The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law. Can the president put somebody above the law? No. The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution.

If all we had to go on was the quote in Rubenfeld's op/ed, we might be inclined to agree with him, but I don't see how Rubenfeld's representation of Mukasey's remarks can survive even a cursory reading the transcript. Remember, Rubenfeld's assertion was that the question of whether "a president may ... disregard a federal statute ... when Congress has acted outside its authority by passing a statute that is unconstitutional" is not what Mukasey was talking about. That assertion seems unsupportable. Leahy asked Mukasey whether the President can undertake actions that FISA purports to govern in derogation of FISA, and Mukasey replied that the President may be able to if he or she has independent Article II authority to take such actions, because while the President must obey the law, if Article II does give the President that authority, then the FISA statute isn't law, to the extent it infringes on that authority. Or so the argument goes, and this is a very well-worn and familiar debate, yet Rubenfeld doesn't simply say that Mukasey seems to be on the wrong side of it, which is certainly arguable). Instead, it seems to me, he blatantly misrepresents (or perhaps misunderstands, but I find that hard to believe) Mukasey's remarks, perhaps because the real underlying criticism (viz. that he thinks Mukasey's on the wrong side of the FISA vs. Article II argument) is so unexceptional. I just don't read the transcript -- don't see how it could be read in good faith -- the way that Rubenfeld represents it. Indeed, Mukasey all but expressly repudiates the position that Rubenfeld is trying to hang on him: "The president," Mukasey told the committee, "doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution."

ADDED: Via Ann, I see that Steve Kaus has some problems with this post, but he misapprehends (or misrepresents) my post, and makes a few very questionable assumptions along the way.

Kaus says that the disagreement between Rubenfeld and me is "over whether ... 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)." The description of the position Rubenfeld ascribes to Mukasey is accurate; the description of the position I ascribed to Mukasey is not. So, to repeat for the hard of comprehension: what I said was that the most one can possibly extract from Mukasey's testimony was the view that if FISA infringes on the inherent authority of the President, then Article II trumps FISA. How Kaus can keep a straight face while invoking Marbury v. Madison in support of his position is beyond me, since Marbury and the entire theory and practice of judicial review collapses if the law is whatever Congress says it is, Constitution notwithstanding. The central point of Marbury is that Congress can make statutes, but a statute that conflicts with the Constitution isn't binding law. Nobody argues that the President has some "right to violate a Constitutional law" - the argument is over what it means for a law to be Constitutional. The argument is over whether the President has a right to violate a statute which he or she deems unconstitutional in the absence of authoritative resolution of the question from the Supreme Court. Rubenfeld's article could have said that Mukasey is on the wrong side of that debate, but that's a dog-bites-man story, so instead, Rubenfeld chose to sex it up into a man-bites-dog story by feeding his readers a misrepresentation of Mukasey's remarks that is completely untenable when confronted with the actual transcript (see above).

Despite Kaus' unsupported assertion that I do, I've never said that I "accept[] the ... argument" - subversive or otherwise - "that any law is Unconstitutional if the president can say he needs to violate it to protect the country." Not even thought it, in fact: while I've not yet come to a solid conclusion as to the scope of the Presidency's inherent Article II powers generally (let alone specifically vis-a-vis FISA), I'd certainly never couch that in such an absurdly sweeping and broad pronoucement as the one Kaus wants to pin on me. Like Rubenfeld, Kaus is attacking a strawman.