J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Tuesday, October 23, 2007

The President Has No Trumping Authority

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.

Rubenfeld wrote:

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.

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.
Rubenfeld’s first quotation comes from the Constitution’s Article V, his third from Article I, Section 8.

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.”


RevolutionaryWarTracks said...

The Vice President was John Adams during the time of the Revoluutionary War. His contributions have often been greatly overlooked. Those who wrote the Constitution were not only concerned with their own needs. As a result, the President and Vice President have the same laws apply to them as the citizens of the country. Unfortunately, this has not always proven to be true through the history of the country.

Shannon Bridget Murphy

J. L. Bell said...

The U.S. of A. didn't have a Vice President until 1789, six years after the Revolutionary War ended. John Adams did indeed fill that role.

When the U.S. Constitution was written, Adams was out of the country on a diplomatic mission. However, he seems to have influenced the national Convention through the constitution he largely drafted for Massachusetts, adopted in 1780.

The founding generation had an acute sense of the danger of the head of government putting himself above the law because they perceived examples of that behavior in monarchs around the world. They clearly wished to avoid that danger when they created the office of President.

chris said...

Very excellent points.

I enjoy your blog very much.