Shining Light On Judgment Calls

Does the president, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?

GONZALES: Senator, the August 30th memo has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes.

. . . And so what we're really discussing is a hypothetical situation that...

FEINGOLD: Judge Gonzales, I've asked a broader question. I'm asking whether, in general, the president has constitutional authority -- does he at least in theory have the authority to authorize violations of the criminal law when there are duly enacted statutes, simply because he's commander in chief?

FEINGOLD: Does he have that power?

GONZALES: Senator, in my judgment, you phrase it as sort of a hypothetical situation. I would have to know what is the national interest that the president may have to consider.

What I'm saying is, it is impossible to me, based upon the question as you've presented it to me, to answer that question.

I can say is that there is a presumption of constitutionality with respect to any statute passed by Congress. I will take an oath to defend the statutes.

And to the extent that there is a decision made to ignore a statute, I consider that a very significant decision and one that I would personally be involved with, I commit to you on that, and one we would take with a great deal of care and seriousness.

FEINGOLD: Well, that sounds to me like the president still remains above the law.

GONZALES: No, sir.

From here.

The President is also fond of signing statements in connection with legislation basically stating that he will not follow it.

How about this for a law?

The President (and all other members of the executive branch) is only entitled to act contrary to a law passed by Congress on the grounds that it is unconstitutional, either as applied, or on its face, by applying for a declaratory judgment in a federal court, that the law is unconstitutional. Any official who ignores a law on the grounds that it is unconstitutional, in the absence of the pendency or favorable determination of such an action, is subject to both criminal prosecution and to liability for civil damages for any harm resulting to any person from such violation. This could be enacted with a basis, among others, of the Congress's enforcement power under the 14th Amendment. Any statute of limitations for criminal prosecution would be stayed until a new President has taken office.

This serves two purposes. First, it forces decisions to ignore the law to be made public, and second, it forces those decisions to be made by the judicial branch, which is charged with interpreting legal disputes, and any case in which a President chooses to ignore a Congressionally enacted statute is ipso facto a dispute regarding the interpretation of the law.