But Congress's law-making authority also arises from the Constitution. Plus, Congress's authority is explicit, not merely implied like the President's "inherent" power is implied. There is no trump here. The two powers collide head-on.
"the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information".
Well yeah, absent FISA, he has that authority. But FISA's not absent anymore.
The Constitution trumps FISA.
Rephrased, you're simply re-stating your earlier assertion that the President's implicit constitutional power trumps Congress's explicit constitutional power. Again, there is no trump. This matter is far from a slam dunk for either Congress or the President. We could remove funding and get rid of the intelligence agencies tomorrow if we really wanted to. Where would the President's inherent power be then?
"virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment".
Meaning FISA doesn't violate the Fourth Amendment. No kidding; that's been known for 20 years. The whole point of FISA is to provide the legal means under which warrantless surveillence is to be conducted. The entire statute sidesteps the Warrant Clause's requirements; that's FISA's whole purpose. So saying that FISA doesn't violate the Fourth is saying nothing new or significant at all.
The issue regards separation of powers, not the 4th Amendment.
The President raised a number of affirmative defenses, including both the issue of the AUMF, as well as asserting powers granted him under Article II of the Constitution.
Which is what I've been talking about, btw.
He claims that the AUMF "clearly and unmistakably" authorizes searches outside the FISA framework, but the authority is neither clear nor explicit; it's implied.
He has the Youngstown (steel seizure case) analysis completely backward, claiming his "authority is at its maximum" when it's actually at its "lowest ebb". ("When a president takes measures incompatible with the express or implied will of congress, his power is at the lowest ebb, for then he can rely only upon his own constitutional power minus any Constitutional power of Congress over the matter." Youngstown Sheet And Tube Co. v. Sawyer, 343 u.s. 579, 637 (1952).)
And his analysis of the phrase "shall be the as exclusive means by which electronic surveillance... may be conducted" is completely opposite of what Congress intended when FISA was passed.
The President has never said that he could ignore FISA altogether or that FISA, in general, is a law that "he doesn't have to follow".
That's what his argument boils down to, though. He's saying that the AUMF means he's not bound by FISA, that he can conduct surveillance outside the FISA framework as long as we're at war. FISA is thus rendered a nullity. Why would (or why should) the President abide by FISA if he doesn't legally have to?
The President's position is narrowly drawn in regards to his Presidential authority and FISA, and he has only construed it as he did for cases of foreign intelligence intercepts.
All of FISA is about foreign intelligence surveillance, and FISA is what the President claims authority to bypass. That's hardly narrow, if you ask me.
Furthermore, no review court has ever held that the President is required to use the provisions of FISA to obtain a warrant for foreign intelligence intercepts.
Nor has any court ever held that the President isn't required to follow FISA's provisions. So far, the question has not been addressed.
Virtually every review court that has ruled on the matter, recognized the President's inherent constitutional authority to conduct warrantless foreign intelligence intercepts.
But that only addresses the 4th Amendment question, which is already a settled matter. Separation of Powers is the question that's still up in the air, and the answer is anything but obvious.
P.S. It's way past my bedtime. No more replies from me until tomorrow.
Incorrect, the principle that the Constitution trumps the ordinary acts of Congress, like FISA, has been settled law in this country for over 200 years.
"Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."
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Fever >102º, difficult to compose responses. Later.
You are to be congratulated and I ping Jim because while he has to deal with all those who forget the posting guidelines, he may often lack the time to see such a fine example of disagreement and debate in what focuses in on great principle.
Again, thanks.
Whether pre-FISA or post-FISA, it really doesn't matter, because the principle that the Constitution trumps the ordinary acts of Congress (like FISA), is foundational to our system of government and has been settled law in this country for over 200 years.
"Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."
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Incorrect, this is not a case of one constitutional provision versus another constitutional provision, as you suggest. This is a case involving the President's constitutional authority versus the authority of a law passed by Congresses. And as the you've seen, the Marbury court long ago held that "a law repugnant to the Constitution is void".
The answer is simple, you'd have the biggest constitutional crisis since the founding of this country. The courts have held innumerable times that the President's Article II powers includes absolute authority over foreign relations and that includes foreign intelligence. While Congress certainly holds the purse strings, any attempt to use those purse strings to undo the Constitutional powers of the President, would only have the gravest of effect on the continuity of our republic.
Apparently I wasn't explicit enough, let me add some more.
It's true, that among the President's affirmative defenses he raises the issue of the AUMF, however, since the constitutional defense is foundational and the paramount legal defense and one which would make all other defenses irrelevant, I choose to argue the constitutional issue exclusively.
Incorrect, that holding by the court does not mean that "FISA doesn't violate the Fourth Amendment", it explicitly means, and was referring to the fact, that the President didn't violate the Fourth Amendment with warrantless (i.e., non-FISA) electronic surveillance to collect foreign intelligence information.