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Mukasey: "I can't contemplate any situation . . . "

By Jack M. Balkin

In response to questions from Senator Specter concerning when, if at all, the President may rely on his Article II authorities to decline to abide by statutes or treaties, the Attorney General testified this morning that "I can't contemplate any situation in which this President would assert Article II authority to do something that the law forbids."

Oops. Perhaps the Attorney General didn't get the memo. Just two days earlier, the President issued a signing statement asserting the authority to "construe" (i.e., to ignore) certain provisions of the National Defense Authorization Act for Fiscal Year 2008 so as not to "inhibit" exercise of his Article II authorities. (See the detailed discussion here.) Judge Mukasey's Office of Legal Counsel and Office of Legislative Affairs undoubtedly cleared that signing statement (or even helped to draft it). Alas, there must have been bugs in the internal DOJ distribution system . . . .

Full post as published by Balkinization on January 30, 2008 (boomark / email).