An oped piece, Lawbreaker in Chief, in the New York Times today written by a professor of constitutional law at Yale Law School, Jed Rubenfeld, is worth a read. He addresses who has the power to decide when a law is constitutional - the executive or the courts or Congress. This power was supposedly determined definitively by Marbury v. Madison - the subject of my undergraduate thesis at Vassar - to rest with the Supreme Court.
Bush and his lawyers have argued that his "authority to defend the nation" trumps his obligation to obey the law. (Goldsmith, see below, does not believe the Presidency is above the law but he would use the term responsibility to defend the country rather than authority and remind us that it is a responsibility that hangs heavily).
Rubenfeld cites the US Constitution and notes that the job to defend the country is expressly listed as a job for (and assigns the power to) Congress. See Article I, Section 8, in pertinent part (emphasis added):
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Article 2 sets forth what the President is supposed to defend (emphasis added):
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Funny, isn't it? Or one might say Orwellian.
Note the preamble that sets out the purpose of the Constitution, the purpose of uniting the states. And contemplate how our union now dysfunctions - how none of the goals are now being achieved.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
We have an imperfect union.
We have a union fiercely divided by the likes of Rove in this country. We have unfair legal access that results in injustices. We have domestic turmoil - floods and fires and foreclosures. We have a weak defense with an overextended military and a overpaid wasteful privatized military. We have increasingly limited freedoms with wiretaps as well as the moralistic intrusion of government into medical research and our bedrooms. And we have uneven posterity - if you are diagnosed with cancer and rich you live, if poor you don't.
Do we promote the general welfare - ensure the faring well of generally all of us? No, the Republicans don't believe in general welfare; it's everyone for him or herself.
This sad state of affairs supports the argument for a constitutional convention.