Balkinization: Mukasey and Executive Supremacy

Mukasey and Executive Supremacy

Guest Blogger

Jed Rubenfeld

Some have replied to my October 23rd op-ed in the New York Times by saying that nominee Michael Mukasey meant only that the president may disregard unconstitutional laws. This reply is simply a misunderstanding -- not necessarily of what Judge Mukasey said, but of the constitutional issue at stake.

That issue is not complicated. The question is where Judge Mukasey stands on a certain highly controversial, radically expansive view of executive power -- a view repeatedly taken by lawyers in the present Administration. According to that view, executive power is supreme over congressional power in the following kind of case. The president, on this view, has the constitutional authority to disregard an otherwise valid federal statute -- i.e, a statute regulating a subject matter the Constitution gives Congress the power to regulate and in all other respects exercising powers that the Constitution grants to Congress -- where the president also has a constitutionally granted power over that subject matter under the commander-in-chief clause and the subject matter involves (according to the president) a threat to national security.

This executive-supremacy view is, in my opinion, contrary to the Constitution's foundational principles, contrary to the Supremacy Clause, and contrary to the famous Steel Seizure Case. Some, however, endorse it. The question is whether Judge Mukasey does.

It is possible to describe this view of executive power, to use the language I used in my op-ed, as endorsing a presidential power to disregard constitutional statutes. (Which is exactly what it does, from the point of view of its critics: it allows the president to disregard constitutional statutes.) Some, however, have replied to my op-ed by saying, "But Judge Mukasey never said that the president can ignore a constitutional statute; all he meant was that the president can ignore an unconstitutional statute." This reply simply misunderstands or conceals the issue at stake.

One way of expressing the executive-supremacy view is precisely to claim that otherwise valid statutes "become unconstitutional" in the cases described above. If Judge Mukasey does in fact believe the president can disregard federal statutes in the kind of cases described above, it makes no difference whether the otherwise valid statute is said to "become unconstitutional" in these cases (on the ground that it impinges on Article II) or whether instead the president is simply said to be constitutionally supreme (vis-a-vis Congress) on matters that fall within his commander-in-chief power. There is no difference between those two positions. To say that the otherwise valid statute "becomes unconstitutional" in these cases just is to say that the President is supreme over Congress in these cases.

With respect to statutes like FISA and the military commissions act, Congress has regulated subject matters that the Constitution undoubtedly empowers Congress to regulate. The question is whether the president has authority to disregard such statutes on the theory that through the commander-in-chief clause he too has a constitutionally granted power over the subject matter and that his power trumps Congress's. Judge Mukasey may or may not agree with this radically expansive view of executive power. That, as I say, is the real question. What Judge Mukasey said in his hearings was that the president could ignore a federal statute if "what goes outside the statute nonetheless lies within the president's authority to defend the country." The president is not above the law, Judge Mukasey emphasized, but the law "starts with the Constitution;" a "statute, regardless of its clarity, cannot change the Constitution." If these statements do imply agreement with the radically expansive view of executive power, it is no reply to say that Mukasey "only" meant that "the president is not bound by unconstitutional statutes." That proposition would no longer be the uncontroversial assertion it might seem; it would rather be an implicit or coded endorsement of executive supremacy in the circumstances described above.

Posted 1:37 PM by Guest Blogger [link]

Comments:

I don't think it's right to dismiss all assertions of a presidential power to disregard unconstitutional statutes as an impermissible form of "executive supremacy." Imagine, for instance, a statute providing that U.S. military forces in Iraq shall be placed under the command of the Speaker of the House. Although it could be said that such a statute regulates "a subject matter the Constitution gives Congress the power to regulate" (it's a rule "for the Government of the land and naval Forces" after all), if the CinC Clause means anything, this law is unconstitutional. Would the President really be asserting that executive power is supreme over congressional power if he concluded that he would not turn over control of the military to Nancy Pelosi? I think not. He would instead be asserting that congressional power is not unlimited.

The proper question, it seems to me, is not how to characterize what the President is doing, but rather what the best reading of the Constitutional actually is. To be sure, I don't believe that the CinC Clause really gives the President exclusive and unchecked authority to protect the national security in whatever way he sees fit. So, I think it's fair to criticize Mukasey for misunderstanding the scope of the President's substantive Article II power. But that's something different from attacking the more general principle that some congressional enactments do in fact invade the core of executive power in such a way that they cannot and should not be enforced by the President. And when the President declines to enforce such laws, he acts not in spite of, but because of, the Take Care Clause.

# posted by

Unknown : 4:18 PM

According to that view, executive power is supreme over congressional power in the following kind of case. The president, on this view, has the constitutional authority to disregard an otherwise valid federal statute -- i.e, a statute regulating a subject matter the Constitution gives Congress the power to regulate and in all other respects exercising powers that the Constitution grants to Congress -- where the president also has a constitutionally granted power over that subject matter under the commander-in-chief clause and the subject matter involves (according to the president) a threat to national security.

Talk about stacking the deck! Is this really how those who disagree with Rubenfeld would frame the issue? If it walks like a tautology and talks like a tautology, it's a tautology! Congratulations to Professor Rubenfeld, this year's Straw-Man Award winner!

# posted by

The Counterfactualist : 4:56 PM

Bwillen has it right. Statutes are unconstitutional to the extent that they infringe on exclusive presidential powers. For example, Congress cannot pass a statute regulating the President's pardon power, even if the statute is otherwise within Congress's Article I powers.

The question in the national security context is whether, and to what extent, the President's war and foreign affairs powers are exclusive of Congress. As bwillen says, this inquiry requires careful examination of each relevant constitutional provision (with reference to historical practice, etc.).

I'm inclined to think that the President's core exclusive war powers are very narrow in scope, and that in most cases the President will have no right to disregard statutes. Presumably Prof. Rubenfeld agrees. But he should explain why Judge Mukasey is mistaken about the scope and nature of the President's Article II powers, rather than suggesting that the judge believes in some extra-constitutional national security escape valve.

# posted by

Unknown : 4:56 PM

"[I]f Congress passed a statute ordering the deployment of troops in a fashion so specific that Congress had attempted to exercise a power that only the commander-in-chief possesses, Congress would not have been exercising one of its constitutionally granted powers and would not have passed a valid statute at all."

-- Professor Jed Rubenfeld, on Ann Althouse's blog, althouse.blogspot.com

# posted by

The Counterfactualist : 5:01 PM

I don't think there's any second-order issue of interpretive supremacy here. The issue is just whether, if "the president also has a constitutionally granted power over that subject matter," Congress is allowed to remove that power. That's simply an ambiguity in "constitutionally granted power"--does that mean a power that the Constitution grants, in the absence of Congressional action taking it away, or does that mean a power that the Constitution grants, simpliciter? If it's the latter, then a Congressional restriction would be unconstitutional, and it's as uncontroversial as Marbury that it would be OK for the President to follow the Constitution instead. But if it's the former, then it's crazy to think that Mukasey suggested the President could ignore the statute, since Mukasey explained himself very, very clearly as relying on the Constitution.

# posted by

Chris : 5:16 PM

JohnTaylor88 quotes Rubenfeld:

"[I]f Congress passed a statute ordering the deployment of troops in a fashion so specific that Congress had attempted to exercise a power that only the commander-in-chief possesses, Congress would not have been exercising one of its constitutionally granted powers and would not have passed a valid statute at all."

-- Professor Jed Rubenfeld, on Ann Althouse's blog, althouse.blogspot.com

I beg pardon to disagree. For instance, if Congress, in its wisdom to regulate the armed forces, were to decree that the troops should go into battle armed only with plastic sporks, this would be Constitutional, even if supremely stoopid (and unlikely, absent a large spork factory in the home district of one of the more powerful legislators). One might cavil that such a law would be so absurd as to exceed the legitimate authority of Congress. But the view of the unitary executive folks is that the preznit had absolute CinC powers. If so, absent any Constitutionally authorised regulation to the contrary, the preznit himself could order the troops into battle armed solely with plastic sporks! If this is argued, and we decide that the extent of an authority is in fact limited by prudential constraints as well as Constitutional ones, does one seriously think that the Founders would have entrusted the singular executive, in the form of one (possibly quite insane or deluded) person, with more such authority than the 535 members (now) of Congress, sitting in deliberation and open debate?

I really don't see that the Constitution prevents Congress from sticking its nose into military operations ... and I don't think it's all that terrible a thing.

Cheers,

# posted by

Arne Langsetmo : 5:46 PM

As Justice Blackmun once noted: "filled with winks, and nods, and knowing glances" are these sorts.

The core issue seems to me is that M. leans toward those with an over the top view of executive power. Obviously, it is basically a truism that if the executive has a power Congress cannot invade, they cannot invade it, including via statutory law. The pardon power is supplied.

But, like the softballs listed in Marbury (like ex post facto laws), we aren't talking about such things. FISA is a clear example as is torture bans. Some have a black hole version of executive power where such things are sucked in.

And, they are loathe to be too blunt about it. Like those secret memos, even talking about it is sometimes deemed in bad form. Wink wink.

# posted by

Joe : 12:35 AM

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# posted by

Joe : 12:42 AM