One cheerful aspect to the torture memo story: it will provide a clear test of the difference between “right-wingers” and “conservatives.” Anyone properly calling himself an American conservative will be horrified, and will say so. (William Howard Taft IV, the General Counsel at the State Department, apparently objected but was overruled.)
If the Framers had wanted to give the President emergency authority to suspend the laws, they could have done so. They chose otherwise.
As good Whigs, they had no genuine alternative. Rejection of the claim of an inherent royal power to suspend the laws was the principle behind the Revolution of 1688.
What should the President do when defending the country requires breaking the laws? Why, he should break the laws, which usually means instructing his subordinates to do so. He, and they, remain subject to punishment, and he remains subject to impeachment.
But if the President can lawfully suspend, by his own mere say-so, any law he thinks inconsistent with the public safety, then there is no check on the President’s power save his own self-restaint and calculation of political reaction. Perhaps one could call a nation so ruled a republic — the definitional question is a nice one — but it would not be the republic established in 1787.
More on the torture memo and the civics memo…
Mark A. R. Kleiman: The torture memo A good explanation of why the President must follow the laws and is…