Reply #11: Go read Josh Marshall's posts

[AnnInLa]

and the discussion at TPM Cafe.

In today's post, Josh references a Pentagon Report, which was used by the WSJ in an article in 2004. Among other things, the Pentagon Report discussed then need to give underlings of the President immunity from prosecution, based on following the orders of the President. Then the report said this:

"To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a "presidential directive or other writing" that could serve as evidence, since authority to set aside the laws is "inherent in the president."

Josh goes on to opine:

So the right to set aside law is "inherent in the president". That claim alone should stop everyone in their tracks and prompt a serious consideration of the safety of the American republic under this president. It is the very definition of a constitutional monarchy, let alone a constitutional republic, that the law is superior to the executive, not the other way around. This is the essence of what the rule of law means -- a government of laws, not men, and all that.

Now, we know that presidents sometimes break laws and they frequently bend them, if only in cases where the laws don't seem to anticipate a situation the president finds himself confronting. There is even an argument that the president can refuse to enforce laws he deems unconstitutional.

But there is no power inherent in the president simply to set aside the law. Richard Nixon famously argued that "when the president does it that means that it is not illegal." But the constitutional rulings emerging out of Watergate said otherwise. And history has been equally unkind to his claim.

click-thrus on site: http://www.talkingpointsmemo.com/archives/week_2004_06_06.php#003046