October 23, 2007

What did Mukasey say about the President's power to disregard statutes?

Yale lawprof Jed Rubenfeld has a NYT op-ed. Simon wields the transcript in retaliation. Decision: Simon.

UPDATE: The discussion continues here, where, among other things, Rubenfeld responds.

37 comments:

Too many jims said...

I'd agree that Simon got the better of it in the sense that Prof. Rudenfeld does not fully flush out the tension and in so doing creates a strawman. If the Prof. was writing a scholarly article he should be taken to the shed for his approach.

But he was writing an op ed. piece. As Simon "routinely admit[s],. . . the inherent powers of the Presidency is one of the hardest questions in conlaw." How many words would it take to flush out that tension? And to conclude what at the end? "I think Mukasey is on the wrong side of this complicated debate." That makes for a great conclusion to law review piece and it makes for an extraordinarily crappy op ed.

Simon said...

Ann, thanks for the link, a sound decision from Althouse, J. ;)

Jim, my problem with Jed's piece is that it commits the same sin as the Spencer Ackerman piece I wrote about last week (it's linked in my post at SF): instead of engaging with the argument, they create a strawman and burn that down. What Mukasey and Leahy were discussing is the fairly difficult issue of whether FISA falls athwart of the President's Article II powers; that's a difficult question, the debate over it has been extensive down the years, and reasonable minds can and do differ. One might read the transcript to and say, "aha! Mukasey comes out on the Article II side of the debate" (although I don't think it's entirely clear that he does). And having so concluded, one might reasonably say - lo, even write an op/ed piece for the New York Times arguing - that Mukasey is on the wrong side of the debate. Marty Lederman could do it, and he could do a great job of it. But that piece would be fairly dog-bites-man, perhaps so much so that not even the New York Times would find it interesting enough for publication. And so what Spencer did last week, and what Jed did today, is to manufacture a man-bites-dog strawman by ascribing to Mukasey a completely preposterous position that no one actually advocates and tearing it down. That not only smears Mukasey, but also does nothing to advance the legitimate debate that we ought to be concerned with, viz. FISA and Article II.

Simon said...

And by the way - I think it's a mistake to think you can't tackle serious questions in an op/ed format. IIRC, Ann has written several that do just that, with only one, I guess not even a mistake but what I'd consider a boo-boo (and only that to the extent that it was an inapt choice of phrasing that left a door open to the anti-althousiana to misrepresent the point being made).

Too many jims said...

I don't think that you can't tackle tough issues in an op ed format without creating strawmen. I do think that this issue is an exceptionally difficult one to write an op ed about without oversimplifying positions.

laser72 said...

I think both Prof. Rubenfeld and Simon are right. The question is one of interpretation.

As I interpret it, Professor Rubenfeld is saying that Mukasey's implied argument (that a congressional statute which infinges on the President's Article II power is unconstitutional) is illegitimate. I agree with Rubenfeld on this point but that's irrelevant. Under Rubenfeld's interpretation of Mukasey's testimony, Mukasey is flat out saying that the president can decide not to follow a constitutional (in Rubenfeld's view) statute.

Simon, as I understand him, argues that Mukasey never says that the president can ignore a constitutional statute. This is clear to Simon because Simon accepts Mukasey's opinion that a statute which infringed on the President's Article II power would be unconstitutional.

In conclusion,I think Simon is correct that Mukasey doesn't explicitly say that the president can ignore a constitutional statute, but Prof. Rubenfeld is correct that in actuality, Mukasey is saying this, because Professor Rubenfeld strongly believes the argument that the statutes are unconstitutional are not persuasive.

Feel free to tell me I'm wrong, but that's my interpretation.

Jack said...

Simon,
If I may ask you a question: Whose decision do you and Ann agree with in Hamdi v. Rumsfeld? Are you two in the Clarence Thomas camp?

Simon said...

Jack: I'm in the Scalia/Stevens camp in Hamdi - the furthest possible place from the Thomas camp. ;) I don't know, but I'd guess Ann would lean towards the plurality opinion.

Jim: I agree that an op/ed has to simplify, but I don't agree that simplification has to become (so to speak) strawmanning.

Laser72: actually I've not really come to rest on any firm conclusion on the Article II vs. FISA question, and more generally, I think Article II inherent authority is a very difficult issue. The reason it seems clear to me that "Mukasey never says that the president can ignore a constitutional statute" is because he says no such thing in the transcript - the entire exchange is framed around the limits of Congress' power to direct and cabin Presidential authority, i.e. is FISA an unconstitutional statute (at least in part).

laser72 said...

"The reason it seems clear to me that "Mukasey never says that the president can ignore a constitutional statute" is because he says no such thing in the transcript - the entire exchange is framed around the limits of Congress' power to direct and cabin Presidential authority, i.e. is FISA an unconstitutional statute (at least in part)."

Simon- you'd agree though that if Professor Rubenfeld were correct that the FISA statute is constituational, then Mukasey would clearly be saying that the president can ignore a constitutional statute, right?

Thus, it's really just a question of who's right on the question of whether Congress is unconstitutionally infringing the President's article II powers.

rcocean said...

You lawyers. What a bunch of crazy kids!

When are you going to learn that life isn't all fun and games?

Jack said...

Simon,
Thank you for the clarification. By chance, have you seen the Frontline documentary Cheney's Law? I'd be interested to hear your thoughts on it, if you have.

Simon said...

Laser72 - As I read Jed's piece, he's not alleging that Mukasey opined that the President can disregard statute X, a statute that Jed thinks is constitutional but that Mukasey doesn't think is constitutional. Rather, it seems to me that he's alleging that Mukasey opined that the President can disregard a statute -- in the abstract -- even if that statute is accepted as an otherwise valid exercise of Congress' power, so long as the President determines that doing so is necessary to protect the nation.

Jack said...

Simon,
I have a another question for you. And would love to hear from Ann, too, if she is so inclined.

Do you agree with Rubenfeld's assertion that "So long as a statute is constitutional, it is binding on everyone, including the president"?

Ann Althouse said...

Jack, the problem is that the constitutional analysis is different with respect to the President. He has some powers that Congress can't take away, so the question is what is the scope of those powers. If Congress has infringed on his power, then the statute isn't constitutional. Rudenfeld knows this of course and it's exactly what Mukasey is referring to.

Ann Althouse said...

Sorry, it's Rubenfeld.

Ruth Anne Adams said...

Simon and Althouse talking Article III...
B-L-O-G-G-I-N-G
First comes law, then comes share-adge,
Then comes Mukasey in a justice miscarriage...

Someone made someone else's day, I'm wagering.

Simon said...

Jack - I did! I missed it, but HDhouse reminded me about it by asking Ann a question about it, and it's available through the PBS website. And it's really a much better, much fairer piece than I expected. I had a post here that talked about one particular issue that was raised (specifically the question HDhouse put to Ann about whether the President could sign off on the TSP in subpono pro the Attorney General), and I talked a bit about signing statements, which also came up in the show, in January, but I'll certainly try to address other issues raised if you have something in particular in mind?

Paul Zrimsek said...

This is clear to Simon because Simon accepts Mukasey's opinion that a statute which infringed on the President's Article II power would be unconstitutional.

Egad! He'd better. (/Dr. Johnson)

laser72 said...

"If Congress has infringed on his power, then the statute isn't constitutional. Rudenfeld (sic) knows this of course and it's exactly what Mukasey is referring to."

Yes, but Professor Althouse and Simon, doesn't the fact that Professor Rubenfeld believes that Mukasey is very wrong in thinking that the congressional statutes he was being asked about are unconstitutional mean that he wasn't actually misquoting Mukasey.

Rubenfeld believes the statute (either FISA or parts of MCA, or other such statute) is constitutional. He also believes that Mukasey is very wrong in thinking that such statutes are unconstitutional. Thus, since Rubenfeld believes there is no basis to declare such statutes unconstitutional, he wasn't wrong to write that Mukasey was saying that the president can ignore a constitutional (in Rubenfeld's view) statute.

laser72 said...

"Rather, it seems to me that he's alleging that Mukasey opined that the President can disregard a statute -- in the abstract -- even if that statute is accepted as an otherwise valid exercise of Congress' power, so long as the President determines that doing so is necessary to protect the nation."

Mukasey says this:

"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."

Your original attack on Rubenfeld says "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."

The distinctions may be too subtle for me, but I think your interpretation of what Rubenfeld says Mukasey said is substantially similar to what Mukasey said, which is substantially similar to what you said Mukasey said. Does that make sense?

Simon said...

Jack (9:29 comment) - as Ann said, I think everyone agrees that "[s]o long as a statute is constitutional, it is binding on everyone, including the president" - I agree with it, Ann agrees with it, and Judge Mukasey agrees with it. But that just begs the question - what is a Constitutional statute? A statute can be unconstitutional if it violates Constitutional rights, of course (which are themselves best characterized as positive restraints on the powers of government), and it can be unconstitutional if it attempts to govern matters beyond Congress' delegated powers (see Lopez and Morrison, for example). But it can also be unconstitutional when it violates structural limitations such as separation of powers (horizontally, vertically or both - e.g. Printz), such as when it infringes on the prerogatives of the other branches of government, as Profs. Calabresi and Lawson have argued in the Article III context, and as Justice Scalia famously advocated in the Article II context (a position the court has moved toward since, see generally Bravin, Is Morrison v. Olson Still Good Law? The Court's New Appointments Clause Jurisprduence, 98 Colum. L. Rev. 1103 (1998)).

Laser72 (9:58 PM comment) - well, it comes back to what I was trying to get across above, that it's the difference between arguing over whether or not the President can ignore a given statute, specifically, on the one hand, vs. saying that the President can ignore statutes, generally and in the abstract, based purely on his own assesment of what's necessary for the defense of the nation, on the other. Of course he's correct that "[i]f [t]he [President] is not [required to obey valid statutes even if he or she thinks it's not the best way to defend the nation], we no longer live under the government the founders established," but he's taken a keep that's not only indefensible but undefended: I don't know of anybody advocates that position - not even Justice Thomas, and not even Dick Cheney - and Mukasey certainly didn't. I may not be doing a good job of delineating the difference here, but it's a quite clear distinction, it seems to me.

laser72 said...

"Of course he's correct that "[i]f [t]he [President] is not [required to obey valid statutes even if he or she thinks it's not the best way to defend the nation], we no longer live under the government the founders established,""

Simon, the key word here is "valid." Rubenfeld (and I) feel that Mukasey is at least implicitly saying that such statutes would not be valid. Rubenfeld (and I) think that this is a severe problem, because those statutes clearly are valid. Well, that's my position on the issue of whether Rubenfeld was misquoting Mukasey. (I don't think he was). I doubt I'll follow up with any more posts. Later.

Revenant said...

Laser,

The problem with your argument is that Rubenfeld doesn't mention FISA in his article. Isn't that a bit strange, if he was -- as you claim -- simply arguing Mukasey favored an invalid reading of the FISA statute?

At the very least, Rubenfeld is guilty of presuming the constitutionality of FISA without bothering to either explain why it so clearly limits the President's article II power or, indeed, even mentioning that that's the particular statute he had in mind.

But what's more damning is that Rubenfeld opens his article with this statement:

Michael B. Mukasey [...] 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.”

Note the plural. Even if we were to accept the notion that Rubenfeld was talking about FISA... what are the OTHER statutes he was talking about? And what's with all the business about Guantanamo Bay military tribunals? Rubenfeld states that "No one, including the president’s lawyers, argues that this statute is unconstitutional"... then goes on to speculate that Mukasey thinks the President is free to ignore it.

That makes absolutely no sense. Under the most pro-Rubenfeld reading of Mukasey's remarks the most you could say is that Mukasey thinks the President can ignore laws if the President believes them to be unconstitutional... so how the heck does Rubenfeld make the leap from that to "the President can ignore laws that even HE thinks are constitutional"?

Steven said...

Making the argument that a law is non-binding because it is invalid (unconstitutional because it improperly restricts Presidential authority) does not, and never does, constitute an argument that a valid law is non-binding.

Professor Rudenfeld is committing the logical fallacy of begging the question; in the Latin, petitio principii. To argue that Mukasey is saying the President can violate valid laws, one must assume the law is valid, that Mukasey knows it is valid, and that Mukasey is saying the President can violate it anyway.

Now, the question of whether FISA restrictions on national intelligence wiretaps are valid law or not is not settled as a matter of law. Even if it were, it would not be settled as a matter of objective fact (this is why it's called Constitutional interpretation). It is therefore utterly improper to make any argument about Mukasey's view of executive power based on the either the assumption that the law is valid or that Mukasey knows it to be so.

One can, of course, argue that Mukasey is wrong to believe it's an invalid law. But to say that Mukasey believes the President can ignore valid laws is unsupported. You can say Mukasey's opinion about the validity of the law is wrong, but his testimony then doesn't say anything about what Mukasey believes about executive power. Rubenfeld's argument is logically invalid.

Now, Rubenfeld could make a different argument. He could argue that the law is plainly valid, that Mukasey is competent enough to know it is valid, and that Mukasey is therefore lying when he expresses any doubt about whether the law can restict the President's Article II powers. In that case, Rubenfeld would be claiming Mukasey values presidential power over the Constitution. But if Mukasey is such a villain, why would Rubenfeld be satisfied with a retraction, instead of an out-and-out defeat for an Attorney General nominee willing to trash the Constitution?

So, no, Rubenfeld made the sort of logical error you'd expect to see in a undergrad composition, not the writing of a Yale lawprof. I would assume that the NYT edited him out of sense, that he is unskilled in this writing format and overcondensed him argument, he had a bad day when he was writing it, or something else along those lines.

hdhouse said...

Nice debate. Can someone tell me who legitimately decides this rather thorney issue? It would appear to be something that is run through the courts but due to its secretive nature and place as exampled here, it falls from the tree ..the opinion that is.. from the Office of Legal Counsel in a memorandum. This memorandum, upon which the President declares some Fisa provisions to crowd his authority, has no review and indeed is top secret so few even know it exists.

Now as a loyal liberal citizen who hopes for most areas of dispute to be run up the courts or in some manner resolved by the third branch in a fashion that I know about (as a citizen) this debate is alarming.

I repeat my earlier question: who decides? Does the rash of signing statements also reflect this self-governing "who decides" issue as well?

I read Simon's blog as best I could and aside from the Senator's inability to phrase a coherent question I frankly see this as a conflict without a distinction...and earlier reporting on Mukasey's testimony, that he is lockstep with the administration (i.e. an attorney general "yes man") with a preappointed OLC head who is even more of a "yes sir man", giving an answer that at best is nuanced to the point of unclarity and at worst is another adventure in Gonzales-land to be unsettling.

laser72 said...

ok, so I lied, consider this my 1 minute rebuttal

revenant- it doesn't matter that he didn't mention FISA. He could have been asked about any law, the answer would have been the same. FISA is just an example of a law that some people believe infringes upon the President's Article II powers.

revenant and steven-

Rubenfeld doesn't assert that Mukasey thinks Bush can ignore laws he knows to be valid. Rubenfeld points out that Mukasey is implying that the administration believes these laws to be invalid, and Bush would ignore them, despite the fact that there's plenty of good reason that they actually are valid.

laser72 said...

one last comment,

I'll concede that this does not make much sense:

"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.”"

I think Rubenfeld means that Bush and co. actually do think it's unconstitutional solely for the Article II reasons, but I don't really know what Rubenfeld was thinking. As far as I can tell, Mukasey definitely did not say that Bush would ignore valid statutes, and to the extent that this paragraph implicates the opposite, it can't be defended.

Revenant said...

Rubenfeld doesn't assert that Mukasey thinks Bush can ignore laws he knows to be valid.

Did you actually read the article? Because that's exactly what he's claiming Mukasey said.

He specifically claims that Mukasey is "radically transforming" the notion that Presidents may ignore unconstitutional laws "into a completely different and un-American concept of executive power". He goes on to claim that "the justices reaffirmed that the president must comply with a valid federal statute [...] But evidently Attorney General Mukasey would argue otherwise — he just did".

Rubenfeld's not being honest at all.

Revenant said...

Now as a loyal liberal citizen who hopes for most areas of dispute to be run up the courts or in some manner resolved by the third branch in a fashion that I know about (as a citizen) this debate is alarming.

I don't see why "this Presidential decision cannot be overturned by the Supreme Court" is any more alarming a concept than "this Supreme Court decision cannot be overturned by the President" is. At least I get to vote against the President in the next election if I think he's abusing his power.

For that matter, the power to rule on the constitutionality of laws isn't explicitly granted to the courts by the Constitution. The Supreme Court simply declared that it had the power to do so, and that its decisions in that area overruled those of the other two branches. Was that alarming?

I repeat my earlier question: who decides?

Realistically? Congress. Congress has two powers that hold the President in check, namely (a) the power of impeachment and (b) the power of the purse. Beyond that, they simply rely on the President acting in good faith.

Even if the Supreme Court DID stick its oar in the water, it doesn't have an enforcement arm. The person Constitutionally charged with enforcing Supreme Court decisions is... the President himself. This means that the only practical difference between unreviewed Presidential power and Presidential power subject to court review is that the latter can be bad PR for the President if he ignores the ruling.

hdhouse said...

Revenant...not so fast. The supreme court's enforcement arm rests in impeachment.

My next question is if this administration would view impeachment as an usurption of presidential powers.

Isn't that the conclusion at the extreme end of this argument?

Roger said...

As I recall, the SCOTUS, historically, has been reluctant to intervene in constitutional struggles between executive and legislative branches. Some legal scholars can certainly correct my recollection here. While I generally agree with HD about SCOTUS' enforcement arm being impeachment, I think the silly Clinton impeachment effort vitiated that mechanism by making it a crude partisan charade. For example, democratic president, democratic congress (or senate): would partisanship overcome duty? I suspect so.

I would submit the ultimate arbiter of these squabbles is the electoral process at two, four and six year intervals.

hdhouse said...

Roger..point well taken. Again, as a nonlegal, I don't want to sully this debate or throw it off track so my interjections are those of the ordinary citizen observer.

In a nutshell, it appears that the executive is deciding what the "meaning of is is" here and ignoring congress based on opinions, internally generated, that we can't see until way after the fact if at all. The 2/4/6 election "fix" is all well and good but, as in the present case, there has been a lot about this that never got to the public eye after 7 years.

So isn't this entire issue one of secrecy v. transparency? That either the debate about inherent powers is out in the open so we can agree or disagree and fix or is it something, like Adams said of a George Washington, a magnificent statue of man on horse that sprang from the ground fully growed.

Clues? said...
This comment has been removed by the author.
Clues? said...

Apologies.

Simon said...

hdhouse said...
"Revenant...not so fast. The supreme court's enforcement arm rests in impeachment."

I don't know if I'd phrase it quite like that. Certainly Congress could initiate impeachment procedings in reaction to a Supreme Court decision finding the President to have been a very bad boy (or girl), but then again, since the definition of "high crimes and misdemeanours" falls under the political questions doctrine, Congress can initiate impeachment procedings for anything, with or without a ruling by the Court.

Also, I'd say that the biggest hurdle to litigating this particular question - about FISA and Article II - is that it's quite difficult to imagine a scenario in which a litigant could demonstrate having standing to bring the challenge in the first place.

Fred Soto said...

Screw the transcript, did you watch the hearings? I loved him on day 1, on day 2... not so much.

He is ready to allow the President to skirt legalities so long as the the circumstances call for it. There really was no definitive "the president must uphold the law, must obey the Constitution, is bound by the Constitution" it was more like "yes, but...." or "maybe..." or "It is possible that..."

There was no certainty, there. After the first day I thought he was a true winner. After day two was over, I knew he was a fucking loser. Watch the videos of the hearings, transcripts won't tell the whole story.

Mortimer Brezny said...

I can't believe I missed out on this.

Revenant said...

Revenant...not so fast. The supreme court's enforcement arm rests in impeachment.

Er... no, it doesn't. The Supreme Court has no power to impeach the President. In fact, even if the Supreme Court says "what the President did was totally legal", Congress can impeach him anyway. The only branch of government whose opinion of the law matters during an impeachment trial is Congress.

My next question is if this administration would view impeachment as an usurption of presidential powers.

The administration is welcome to think that the moon is made of green cheese if it wants to, but impeachment is quite explicitly within the powers of Congress.

Something you need to remember is that President is, himself, only one man. He runs the executive branch because we accept that he runs the executive branch. A president *could*, in theory, say "nuh uh, I ain't leaving" after an impeachment conviction -- but he'd just get frog-marched out of the White House by his former Marine bodyguards.

Isn't that the conclusion at the extreme end of this argument?

You might as well ask yourself what would happen if the Supreme Court declared "after examining the penumbras of the Constitution, we discovered that it is actually the Chief Justice of the Supreme Court who is Commander in Chief, and that the Legislative Power actually resides with the six associate Justices". After all, that is the conclusion of the extreme end of your "the Supreme Court gets the final word" argument.