Is There a Non-Imbecilic Version of the President's Latest Assertion?

That assertion being, "He who saves his country does not violate any law." (I have cleaned up the quote out of respect for the English language.) 

There is. In more contemporary legal academic literature, it is represented by several fine articles. One might start with Henry Paul Mongahan's The Protective Power of the Presidency, a 1993 Columbia Law Review article whose core question is the extent to which "the President, acting on his or her own, [can] invade the rights of American citizens in circumstances which Congress could—but did not—authorize." Monaghan concludes that the president "cannot act contra legem," but that the executive may have a bounded "protective power" to "protect and defend the personnel, property, and instrumentalities of the United States from harm." He makes clear that the protective power he envisions is limited, both in scope and in nature; it does not, for instance, contemplate the use of the word "harm" in the distended contemporary manner beloved these days on both sides of the political horseshoe. (That seems obviously relevant here, since the only way in which the words "saves his country" could possibly be applicable at present is a fatuously general argument that not having the country one wants, the second one wants it, justifies extralegal emergency measures.)

Another chunk of material addressing this question was birthed after 9/11. The positive case was put by Michael Stokes Paulsen in his 2004 article The Constitution of Necessity. Paulsen argues there that "the Constitution itself embraces an overriding principle of constitutional and national self-preservation that operates as a meta-rule of construction for the document's specific provisions and that may even, in cases of extraordinary necessity, trump specific constitutional requirements. The Constitution is not a suicide pact; and, consequently, its provisions should not be construed to make it one, where an alternative construction is fairly possible." And where such an alternative saving construction is not possible, the necessity of preserving the Constitution and the constitutional order as a whole requires that priority be given to the preservation of the nation whose Constitution it is, for the sake of preserving constitutional government over the long haul, even at the expense of specific constitutional provisions." Paulsen argues that "the primary [but not exclusive] duty of applying it and judging the degree of necessity in the press of circumstances" rests with the President. He describes this power as both necessary and dangerous, obviously susceptible to misuse, and adds that both Congress and--more pertinently today, for the time being--the judiciary have a duty to independently review any exercises of this power: "While the courts, and Congress, should recognize the correctness of a doctrine of constitutional necessity,...that does not mean they should go along with whatever the President says. A constitutional power of necessity necessitates checks on its exercise. Complete congressional and judicial acquiescence or abdication has a name. That name is Korematsu." 

Another example of the positive case from the same period comes from Oren Gross, who argued in 2003, in Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, that "there may be circumstances where the appropriate method of tackling grave dangers and threats entails going outside the constitutional order, at times even violating otherwise accepted constitutional principles, rules, and norms." He argues that any such conduct must involve an open and public acknowledgment of the extralegal nature of these actions, and it may then be judged by the public, including other officials, who may approve it or may call that official to account and require that he or she "make legal and political reparations." 

On the other side, I have always been impressed by Sai Prakash's The Constitution as Suicide Pact, written as a response to Paulsen's article. Prakash argues that "though the Constitution creates a powerful chief executive, it does not empower the President to suspend the Constitution in order to save it." He writes eloquently: "I do not regard it at all obvious that people framing a constitution would include an 'anti-suicide' provision. In fact, there are many sound reasons why reasonable people might omit a rule of necessity. To begin with, constitutional framers might value other things, like religious freedom or a slavery prohibition, more than the durability of the constitution and the nation. In particular, constitutional framers might not wish to frame a constitution that permits the expedient sacrifice of such principles, even temporarily. Moreover, constitution-makers might believe that officials will violate the constitution on grounds of necessity anyway, and that we ought not to multiply those violations by explicitly sanctioning what otherwise might occur once in a blue moon." This argument, I should think, will be especially legible to religious individuals, who may think of any given state as a temporary expedient that is ultimately subordinate to higher values and ultimate things. (Admittedly, this understanding may be different if the religious individual in question is an idolater.) 

Needless to say, all of these arguments, back and forth, have occasioned a rich library of commentary. And these are just recent efforts. All of them take place against a longer history of argument, stemming most particularly from Lincoln's presidency, about what presidents or other officials may do, when they may act extra-legally, and whether such actions should be understood as non-violations or justified violations of law. Viewed from a suitably wide perspective, they do not break down into party or crudely ideological lines. Arguments for expansive governmental power, executive or otherwise, are often grounded in some form of "necessity." What the best of these discussions have in common is a sense that something more than legal realism or crude power is at play in these discussions, that any such power that might exist is deeply perilous even if it is necessary, and that it ultimately relies on candor, on a non-shirkable duty of independent evaluation by other officials and by citizens, and on the willingness to face the consequences of one's decision to act in a way that would normally be considered a law violation--although this runs up against what Prakash, writing elsewhere, calls "an extreme executive aversion to admitting illegality during crisis,....a tendency that predictably leads executives to press rather sweeping readings of their constitutional and statutory authorities."

I should add, however unnecessarily, that none of this is present in today's eccentrically capitalized presidential statement. Just as one should be willing to acknowledge serious arguable questions and not dismiss them simply because the source is poor, so one should be cautious about putting lipstick on a pig. It's not a fatal fault of a presidential argument that it could be put more seriously and deeply. We do not expect depth from presidents and should, in my view, even be wary of any desire for them to be eloquent. But we should distinguish between elaborating on someone's actions or arguments, and engaging in post-hoc rationalizations on their behalf, in a way that risks wildly missing the point. One should not assume that a rationale is called for or even relevant when addressing the words or behavior of a gross, unbridled appetite wearing the skin of a man. One should not too readily assume that his words have much semantic content at all, as opposed to being barbaric yawps. 

Neither, however, should one somehow take as a given that a president's statements are "mere" trolling. (Nor should one forget that trolling is not an acceptable activity for mature adults, in or out of high elected office, even if it has soaked deeply into our culture and appears to be this administration's sole mode of speech. On that point, the title of the second Prakash paper I've quoted seems unusually apt: The Imbecilic Executive.) I don't want to dignify what can't be dignified. But it is nice to be reminded that in other places and times, intelligent people have discussed intelligent versions of these genuine questions. For some, that might indicate that those discussions were already dangerous, insofar as they legitimized dangerous behavior. I'm more inclined to think that what it suggests is that those conversations could only take place because everyone involved in them assumed and shared, perhaps far more than they realized, a baseline level of seriousness, legality, and common ground about the ascertainment of facts. The common ground between the people on opposite sides of those arguments was vastly greater than the space between this president and everyone involved in those debates.