Washington Michael Mukasey, the retired judge nominated to be attorney general, is called a "law and order" conservative. That description is, however, not especially informative now that the Bush administration's sweeping claims of presidential powers have unsettled some understandings of what the law is. The following questions, if asked at Mukasey's Senate confirmation hearings, might reveal whether he considers some of these claims extravagant.
¢ The Bush administration says "the long war" - the war on terror - is a perpetual emergency that will last for generations. Waged against us largely by nonstate actors, it will not end with a legally clarifying and definitive surrender. The administration regards America as a battlefield, on which even an American citizen can be seized as an "enemy combatant" and detained indefinitely. You ruled that presidents have this power, but you were reversed on appeal. What do you think was the flaw in the reasoning of the court that reversed you?
¢ If the Senate musters 60 votes to pass Jim Webb's bill requiring that the deployments of troops in Iraq be no longer than their out-of-theater respites, the president almost certainly will veto it as not only unfeasible but an unconstitutional abridgment of the president's exclusive powers as commander in chief. James Madison, however, wrote: "Those who are to conduct a war cannot in the nature of things be proper or safe judges whether a war ought to be commenced, continued or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws." Could Bush correctly veto Webb's legislation on constitutional grounds?
¢ In 1991, the Senate voted 52-47 to authorize expelling Iraqi forces from Kuwait. Dick Cheney later said that if Congress had refused to authorize force, "From a constitutional standpoint, we had all the authority we needed," meaning the president's exclusive power to conduct foreign affairs. Do you agree?
¢ On Sept. 14, 2001, Congress authorized the use of force against those who committed or were implicated in the attacks three days before. President Bush praised Congress vaguely for "taking this action." Notice he did not praise it for authorizing force. Perhaps he believes that to call Congress' action "authorization" would suggest that authorization was constitutionally necessary. Was it?
¢ In 1952, President Truman, to prevent a strike during wartime, seized the steel mills. The Supreme Court declared unconstitutional this supposed exercise of the president's inherent powers as commander in chief. Justice Robert Jackson wrote: "No penance would ever expiate the sin against free government of holding that a president can escape control of executive powers by law through assuming his military role." What limits can Congress place on that role?
¢ Did Truman act constitutionally in committing U.S. forces to war in Korea without congressional authorization? Were Congress' subsequent appropriations for the war the functional - the constitutional - equivalent of authorization?
¢ In his new book "Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy," Charlie Savage of The Boston Globe notes that when in 1996, "Congress banned placing U.S. troops under United Nations command, Clinton declared that he could bypass the law under his power, as commander in chief, to decide how best to structure the military's hierarchy of command." Do you agree?
¢ The Constitution's Framers, disliking the British sovereign's "prerogative power" to set aside a law for a claimed public good, stipulated that the president shall "take care that the laws be faithfully executed." But consider "signing statements," whereby presidents, when signing legislation, attach statements sometimes directing the executive branch not to execute certain portions. This practice is, in effect, something the Constitution does not permit - a line-item veto. Savage, who won a Pulitzer Prize for his reporting on this president's signing statements, writes that such statements were rare until the mid-1980s, when some conservatives urged the frequent use of them as a means of maximizing presidential powers. Savage says: "If a president has the power to instruct the government not to enforce laws that he alone has declared to be unconstitutional, then he could free himself from the need to obey laws that restrict his own actions." Is this a real danger?
Attorneys general serve at the pleasure of the presidents who choose them but swear to uphold the Constitution. Mukasey has been chosen by a president who has been more aggressive than any other in asserting what Theodore Roosevelt called the "residuum of powers" inherent in the presidency. Mukasey might have to serve the nation by displeasing this president.