Slate's Bizbox
jurisprudence: The law, lawyers, and the court.

From Toady to True BelieverHow confirming Michael Mukasey will further cripple Congress.

By Frank Bowman
Posted Monday, Oct. 22, 2007, at 4:49 PM ET

(Continued from page 1)

Mukasey's views are particularly remarkable coming from a retired federal judge. If, as he asserts, the president's broad lawbreaking power derives from the Constitution itself, Congress is sidelined and the only institution with the authority to say the president has overreached is the judiciary. Mukasey's defenders might argue that this is hardly news, nothing more than a restatement of the rule of Marbury v. Madison that it is the province of the courts "to say what the law is." But if judges themselves begin from the premise that the Constitution permits the president to ignore a direct statutory command, even when there is no emergency preventing timely congressional action, the country will inch ever closer to autocracy so long as a willful president is paired with a complaisant judiciary.

To its credit, the federal bench has handed the Bush administration some stinging rebukes. But given the Supreme Court's traditional unwillingness to intervene in "political questions" relating to national security and the natural reluctance of judges to stand in the way of measures justified as necessary to prevent another 9/11, judicial complaisance in the face of an aggressively expansionist executive is a real danger.

Senatorial opposition to Mukasey's nomination should also crystallize around his testimony about the role of the Justice Department in cases in which executive branch officials have defied congressional subpoenas. The law provides for Congress to refer such contempt citations to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action." But Mukasey said last week that the U.S. attorney should not enforce Congress' contempt citation so long as the noncomplying official was relying on an opinion from the Justice Department's Office of Legal Counsel that noncompliance would be a proper exercise of executive privilege. This sounds superficially reasonable. How can it be fair for the Justice Department to prosecute people for contempt after advising them that they have a valid privilege? But in practice this rule of "fairness" allows the executive branch to exempt itself from congressional oversight. In Judge Mukasey's constitutional universe, the president can tell Congress to stick its subpoenas where the sun don't shine so long as some Justice Department lawyer writes a memo saying that's OK. (In theory, Congress can also enforce its own contempt citations by having the House sergeant-at-arms arrest the contemner and confine him in the Capitol pending trial before the whole Congress. This near-comic-opera procedure was last used in 1935.)

To be fair, an Attorney General Mukasey would surely promote a less confrontational approach to relations between the administration and Congress. But his recent testimony also suggests that, when push comes to shove, he not only believes in presidential supremacy in matters of national security but in broad executive-branch immunity from ordinary congressional oversight.

In ordinary times, Congress might welcome a man of Judge Mukasey's undoubted gifts as attorney general and swallow these differences of constitutional opinion on the theory that a president is entitled to appointees whose views are consistent with his own. But these are not ordinary times. And these are not ordinary differences of opinion.

For seven long years, a misguided and incompetent chief executive has led the country grievously astray. But much of the havoc wrought by his errors of judgment might have been prevented or at least contained had not the Congress feebly acquiesced, year after year, to vaulting claims of presidential supremacy and the steady erosion of its own power.

The Constitution conferred on the Senate the power to reject presidential nominees not merely, or even primarily, to keep rank incompetents from federal office. The appointment power is one of the weapons granted Congress in order to protect the political structure and human values enshrined in the Constitution itself from presidential encroachment. If a nominee for attorney general, however smart, sincere, and capable, refuses to disavow torture and espouses an anti-democratic, anti-constitutional doctrine of presidential hegemony and congressional subservience, he should be rejected. If the Senate is foolish enough to ratify the replacement of a bumbling toady with an accomplished apostle of the gospel of executive supremacy, it will deserve every snub this and future presidents inflict. But the rest of us deserve better.

VIEW AS SINGLE PAGE
Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
Frank Bowman is a law professor at the University of Missouri-Columbia.
Photograph of Michael Mukasey by Mandel Ngan/AFP/Getty Images.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES
Washington Post
The Washington Post
OPINIONS
The Great Debate
Marcus | Forget Biden. I'd like to see McCain face off against Palin.
Toles: Another McCain SurpriseStumped: Where's Palin's Baby?