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November 2007

Mukasey will be Confirmed

It seems that there are now more than 50 votes in the Senate to confirm the AG nominee. This is a shame. The whole waterboarding discussion was a distraction from the larger issue of which it was just a special case.

Namely, is the President obligated to enforce… and obey… the laws passed by the congress, or is the President allowed to substitute their own personal judgement in cases where they disagree. The fact that the President, and through them the entire executive branch, are subject to the law (at least until a law is contested and deemed unconstitutional) should be an absolute no brainer. It completely baffles me that there is apparently a huge portion of the public that just does not see this as an important pillar of our society. The fact that this belief is not a minimum requirement for an AG (or frankly anybody in government) deeply saddens me.

The fact that it isn’t possible to even muster a majority of the Senate to be willing to stand up for their own power and authority in our constitutional system is just frightening in the extreme. As usual, Andrew Sullivan puts it well:

Schumer and Feinstein Surrender
(Andrew Sullivan, The Daily Dish, The Atlantic)

Every time the Democrats fold on these matters, Cheney tucks a precedent under his belt. Every time they cave into their cowardice and fear, another critical part of our liberty disappears. These precedents are designed to destroy the rule of law and replace it with the rule of a Decider. And they will last for ever, as will the right to torture, because this war is for ever. This is how democracies perish. The rule of law no longer has any party to defend it. The Republicans want no check on the powers of our de facto protectorate. And the Democrats have no spine. We live under the lawless protectorate we deserve. And such lawlessness is always the result when cowards refuse to confront bullies.

3 comments to Mukasey will be Confirmed

  • gregh

    The President takes an oath to support and defend the Constitution. It is not the President’s duty to carry out a law that he or she might consider unconstitutional pending judicial confirmation. Further, your suggestion seems to suggest that _every_ law must be enforced by the executive. We have countless laws on the books that would be meaningless to enforce.

    I’m anxious to get some time to read Goldsmith’s book for a modern examination of an imperial executive from a proponent of a strong executive. However, the fact is that scholars and the Supreme Court alike have struggled with this issue. If you’ve been following this closely, you’ve no doubt heard considerably talk of Youngstown Sheet & Tube, and, in particular, Jackson’s famous concurrence.

    That’s not to suggest that Mukasey is the right choice. But to criticize someone for what you — but certainly not the legal community — perceive to be an obvious oversight hardly seems warranted.

  • Abulsme

    I’m well aware that, unfortunately, there have been tons of precedents over the history of this country that reinforce the notion of a strong executive with a lot of discretion. In some ways my ideas of a weak executive and strong congress may be quaint and antiquated. But I think that is a shame.

    I was brief in my statement. In the case where the President believes a law is unconstitutional I do believe it is valid for them not to start acting on it. However, I believe in those cases Congress should have automatic standing to contest that in the courts and that should happen almost automatically as well.

    And yes, there are many many laws on the books which are not enforced. This is a problem though, not something which should be accepted. It should indeed be absolutely required that the executive enforce any constitutional law on the books. If it is no longer desired that such a law be enforced, it should be repealed. If it is fundamentally impossible to enforce, it should be repealed. Etc.

    Of course, all of the above has a lot to do with the difference between what *is* and what *should be*.

    I believe it is a fundamental principle of good government… note, I did not say fundamental constitutional principle… this is independent of what the current set of laws happen to be, including what the current constitution happens to be… that the power to determine what laws apply and which do not, and which will be enforced and which should not be… should not be in the hands of a single person, ever. There must always be multiple hands in that pot.

  • Abulsme

    In the case of a system such as ours, that translates to the president being bound by the laws that the congress passes… within certain constitutional bounds.

    I note that in the cases at hand, for the most part the administration has not yet actually made the case that the laws against torture and such are unconstitutional. Instead, they have argued essentially that they are irrelevant, and that if the president decided that he “needs to” for national security, the president can basically do whatever he wants and ignore any laws to the contrary.

    Now, if he was saying he was doing so because those laws were unconstitutional, and a challenge to that mode of thinking immediately started heading through the courts, that would be one way to deal with it.

    But fundamentally, do I think that it should be “obvious” that the executive is bound by the laws congress passes (which are then signed into law by the president)… yes, I think that should be obvious. To put that fundamental principal aside is to my mind equivalent to essentially putting the congress aside entirely, only to have a voice when the President decides he wants to hear it… which to me is not the sort of government I thought we had, or would want.

    Have plenty of people advocated strong executives in the past? Of course. Those people just scare me. And the fact there are so many of them scare me. A strong executive seems to me to be something which should never exist in a strong democracy. It starts to turn that democracy into something else.

    Are there strong arguments in some cases for non-democratic forms of government? Sure there are. I just would rather not go there.

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