A letter to the editor of the New York Times
Last week the New York Times published Jed Rubenfeld's column condemning Michael Mukasey and his purported view of executive power: "Lawbreaker in chief." The column carried a certain weight because of Rubenfeld's position as professor of constitutional law at Yale Law School. Professor Kate Stith (below) is Rubenfeld's colleague at the Yale Law School, and she actually listened to Mukasey's testimony on the radio in its entirety.
In her letter to the editor of the Times, Professor Stith concisely dispatches Rubenfeld's column:
In his October 23, 2007 op-ed (“Lawbreaker in Chief”), Professor Jed Rubenfeld plucks a single phrase from Judge Mukasey's testimony, imbues it with a meaning that is at odds with the rest of the testimony, and asserts that Mukasey espouses a theory of unlimited presidential power whereby the president does not have to “obey a valid statute.”Professor Stith was among the hardy band of 33 women in our Dartmouth class who were the first women to graduate from Dartmouth. I contacted her last night to ask her why she had taken the trouble to come to Mukasey's defense in oppositon to one of her colleagues on the Yale Law School faculty. In her response she alludes to her position on Dartmouth board issues that we have previously posted here:To the contrary, Mukasey repeatedly and emphatically stated that "the president does not stand above the law." He also properly noted that the law “includes the Constitution.” Hence the president is not bound by unconstitutional statutes, including those that encroach on the constitutional "authority of the president to defend the country." Rubenfeld distorts and mutates this reasoning to accuse Mukasey of asserting that “the president’s authority ‘to defend the nation’ trumps his obligation to obey the law.” In fact, Mukasey said only what Rubenfeld himself conceded in his article, that the president may “disregard” an unconstitutional statute.
Professor Kate Stith
Lafayette S. Foster Professor of Law
Yale Law School
I wrote it for the same reason I wrote a response to Todd Zywicki's article in The Dartmouth: I thought the argument was incorrect and didn't see anyone else responding on the legal issue; in the Mukasey matter, the op-ed to which I responded seemed to conjure a distorted and unfair characterization of Mukasey's testimony and then attacked this constructed straw man.The straw man argument attacking the Bush administration for bringing the dark night of fascism down on the United States has become the incredibly stupid and overwrought cliche characterizing the Times news and editorial pages, but it is unusual to see the straw man's exposure come in the Times itself. Hats off to Professor Stith.
