Prof. Jed Rubenfeld of the Yale Law School, a former assistant United States attorney, today published an important opinion piece in the New York Times, taking issue with Attorney General nominee Michael B. Mukasey’s Senate testimony that U.S. Presidents can disregard U.S. law.
Under the American Constitution, federal statutes, not executive decisions in the name of national security, are “the supreme law of the land.” It’s that simple. So long as a statute is constitutional, it is binding on everyone, including the president.Rubenfeld’s first quotation comes from the Constitution’s Article V, his third from Article I, Section 8.
The president has no supreme, exclusive or trumping authority to “defend the nation.” In fact, the Constitution uses the words “provide for the common defense” in its list of the powers of Congress, not those of the president.
The second quotation, “defend the nation,” does not appear in the Constitution; it’s a paraphrase of Mukasey’s “defend the country.” Indeed, the word “defend” appears in the Constitution only once: in the President’s oath to “preserve, protect and defend the Constitution of the United States.”