When Do We Care If Presidents Break “The Law”?

Ilya’s post about the unconstitutionality of a military intervention in Syria and Jack Goldsmith’s post about the problem under international law prompted me to wonder: Should we feel the same way about Presidential violations of domestic and international law, or are the two kinds of law morally different?

Obviously different people can have different intuitions about this, and ultimately those intuitions may be irreducible, but it seems to me that to answer it helps to unpack why it might be morally wrong to break the law in the first place. A few possibilities occur to me:

    1: There’s nothing wrong with breaking the law. As the legal positivists proved, law and morality are related only coincidentally. It might be wise to obey the law, if there are folks out there who are likely to punish you for breaking it, but that’s a question of tactics, not morality.
    2: Breaking the law is wrong. Law has some kind of moral authority — either an inherent one, or one that is contingent on it being part of a generally legitimate regime. But if there is a generally legitimate regime you should follow the rules. The person in position #1 is Holmes’s “bad man,” (and by definition bad).
    3: Government officials are special. Civilians may have no moral obligation to obey the law (see #1), but government officials are empowered by the law, so they are specially obligated to take the bitter with the sweet. The oath of office operates to convert law into a personal promise.
    4: Breaking the law is dangerous. It’s not inherently wrong, but law is very useful, and if too many people broke the law, we would have chaos. So even if your individual violation of the law might accomplish more good than harm, you should take into account that the system would collapse if everybody acted that way.

It seems to me that those who hold variations of 1 and 2 should probably have the same attitude toward violations of domestic and international law. Under positions 3 and 4, the obligations to domestic and international law are more likely to differ. Those who hold some variation of 4 might have to make a judgment about the comparative fragility/stability of different legal regimes. And under position 3, violations of the Constitution are very different from violations of international law: The President holds office by virtue of domestic law, and swears to uphold domestic law, but he doesn’t make any promises about external international law. He might still care about violations of international law for prudential reasons (see #1 & a version of #4), but it’s not nearly as bad as violating the Constitution.

I’m sure the are other positions too.

UPDATE: Readers point out two points I elided in the above summary. First, under Position 3 one should probably differentiate between the President and other government actors. All of them swear to uphold the Constitution, but the President is also obligated to “take care that the laws be faithfully executed,” triggering the old debate about whether that obligation includes external international law.

Second, some international law is also domestic law. For example, treaties are domestically the supreme law of the land. Thus #3 might still include some international law, but only when that law has been “domesticated” by being adopted as positive U.S. law. So it might be that any international law problems with an attack on Syria are also domestic law problems, since the UN Charter is a treaty “made under the authority of the United States.” That said, I’m not sure whether the international law and domestic law obligations here are exactly coterminous, given the domestic place of non-self-executing treaties, and the ways in which the international law backdrop of the U.N. Charter as a matter of international law differs from the domestic law backdrop of the Charter as a matter of domestic law. In any event, if position #3 is true, it changes the way in which one would have to invoke the Charter, and very likely the set of legal canons relevant to construing it.