Mukasey: Law is no longer supreme
NY Times
October 30, 2007

President Bush's nominee for attorney general, Michael Mukasey, was asked an important question about Congress's power at his confirmation hearing. If witnesses claim executive privilege and refuse to respond to Congressional subpoenas in the United States attorneys scandal — as Karl Rove and Harriet Miers have done — and Congress holds them in contempt, would his Justice Department refer the matter to a grand jury for criminal prosecution, as federal law requires?

Mr. Mukasey suggested the answer would be no. That was hardly his only slap-down of Congress. He made the startling claim that a president can defy laws if he or she is acting within the authority "to defend the country." That is a mighty large exception to the rule that Congress's laws are supreme.

The founders wanted the "people's branch" to be strong, but the Bush administration has usurped a frightening number of Congress's powers — with very little resistance. The question is whether members of Congress of both parties will do anything about it.

Congress is often described as one of three coequal branches, but that is not entirely true. As Akhil Reed Amar, a Yale law professor, observed in "America's Constitution: a Biography," Article I actually makes Congress "first among equals, with wide power to structure the second-mentioned executive and third-mentioned judicial branches."

Article I, which describes Congress's powers, is the Constitution's first, longest and most generously worded article. It gives Congress a wide array of specific powers, but also broad authority to pass laws that bring to life "all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

It would be hard to recognize that powerful Congress today. In part, that is because Congress has been unwilling or unable to enact laws on the most important issues facing the nation — Iraq, immigration reform, health care.

Just as troubling, though, is how it has allowed its institutional power to erode. President Bush has regularly issued signing statements — including on critical issues like the ban on torture — that assert his right to ignore new laws at the same time as he signs them. These signing statements are not just talk. A report by the nonpartisan Government Accountability Office states that in nearly one-third of the cases it looked at, after President Bush issued a signing statement objecting to a provision of a new law, his administration did not implement it as written.

The Senate has routinely confirmed judicial nominees who make no secret of their belief that the president's power should be sweeping, and Congress's sharply cut back.

The Senate confirmed Jeffrey Sutton to a federal appeals court judgeship even though Patrick Leahy, now the Senate Judiciary Committee chairman, observed that as a lawyer Mr. Sutton "aggressively sought out cases to limit the power of Congress to enact laws protecting individual rights." It confirmed Janice Rogers Brown to the powerful United States Court of Appeals for the District of Columbia Circuit even though she had suggested that much of the legislation passed during the New Deal — including the Social Security Act — was unconstitutional.

There are things Congress can do. It can start by speaking out about the importance of Congressional power the way the administration has talked about deferring to the commander in chief. Congress should pass laws that support its own power — like a bipartisan one that Senator Arlen Specter, Republican of Pennsylvania, has introduced to nullify the impact of signing statements.

The Senate should refuse to confirm nominees who do not take Congressional power seriously. And Congress should make clear that if the executive branch will not enforce its subpoenas, it will use its own "inherent contempt" powers to do so.

Right now, standing up for Congress may appeal more to Democrats than Republicans. The issue of reining in presidential power is beginning to gain traction among conservatives, however, as they contemplate the possibility of a Democrat — particularly Hillary Clinton — as president.

Defending Congressional authority should not be a partisan issue. The founders wanted a strong Congress because they understood the importance of ensuring that the most democratic branch have a strong say in how the nation is run.

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