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.
But, the President's actions and the Constitution are not one and the same, so we're not talking about the Constitution vs. ordinary acts of Congress. We're talking about actions of the President vs. acts of Congress.
a law repugnant to the Constitution is void
But FISA's not unconstitutional unless the President's argument is correct. I'm just a layman, but even I can spot the glaring flaw in his argument:
By expressly and broadly excepting from its prohibition electronic surveillance undertaken "as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA.... The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance....But that's not true. As stated unambiguously in Section 2511(2)(f) of title 18,
procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.In other words, FISA, Chapter 119 of Title 18, and Chapter 121 of Title 18 shall be the exclusive means by which electronic surveillance may be conducted. That's definitive, unless and until the Supreme Court says otherwise.
Now, switching gears somewhat, I have a few questions. When we give money to the executive branch, what sort of strings can we attach? Can we for instance allocate funds to the executive branch with a provision stating "none of these funds can be used to conduct electronic surveillance by any means other than the means spelled out in FISA and Title 18"? Would such a provision be an infringement of the President's inherent authority?
Suppose we want to defund the intelligence agencies altogether, setting things up in such a way that there'd be no money for any type of foreign intelligence surveillance at all. Would we be constitutionally allowed to do that, or would that infringe the President's authority?