Actually it's you who needs to take one step closer and explain how simply meeting the qualifications for doing something gives you an unregulable right to do it.
Now compare that to how later courts read and interpreted the words of the Truong court...
If they want to talk about "inherent authority", that's fine, just as long as they don't read into the word "competent" an uncontrollable grant of power. If they do, then they're playing word games. It's that simple.
Let's be clear here, if you wish to argue with the holdings of all these other courts, of course you're free to do so, but then that places your argument on a much different plane, and that plane is not one of trying to inform others what the law is, but rather arguing for what you wish the law to become someday.
So you're of the opinion that judges make law. That puts you at variance with the three most recent nominees to the supreme court (including one who was rejected for not being conservative enough), not to mention the vast majority of posters on this board. Just thought you should know.
The Constitution give no such "power to regulate the government", to the degree that such regulation would pertain to the substantive operations of governmental functions that were granted by the Constitution to other branches of governement. The doctrine you're referring to, Art. I, sec. 8, cl. 18, also known as the "Necessary and Proper" clause...
Nope. Back up four clauses. "To make rules for the government".
If the "foreign intelligence surveillance", is done for the sole purpose of intelligence gathering, then no warrant is needed. But if the "foreign intelligence surveillance" is done for the purposes of criminal prosecution, then a warrant is required.
If the "foreign intelligence surveillance" is done for the purposes of criminal investigation, then it's not "foreign intelligence surveillance", now is it? Hence, the court would have been perfectly justified in saying that warrants for purely foreign intelligence surveillance aren't needed at all, if that's what it intended to say.
Not "who", but rather "what". It is an unconstitutional usurpation of constitutional authority for the President (to conduct warrantless national security intercepts for purposes of a criminal prosecution).
Again with the two-tiered reasoning. He's given the power to prosecute criminal violations of federal law, and he's given the power to look out for national security, yet one of them is more equal than the other, according to you. One of them, you say, doesn't have to be subject to the requirements of the 4th amendment or acts of Congress which Congress is explicitly given power to pass.
inquest: "In fact, law enforcement is a responsibility explicitly assigned to him by the Constitution; foreign policy is not."
So, once again you suggest a two-tiered system of powers
Bull. Quote where I was "suggesting" this. I was just stating a fact, and it's one that can hardly be denied. All you have to do is open the Constitution and read it.
My argument is that the first power should not be treated as being any less sacred than the second, unlike the way you would treat them.
An explanation is unnecessary, when all that is required is to simply note that the Truong court held that the President had the constitutional "qualifications" to conduct foreign intelligence surveillance without a warrant. The "unregulable" part is your fiction, since the court clearly chose to regulate it by discerning between intercepts for made the sole purpose of foreign intelligence gathering, versus those done for purposes of criminal prosecutions.
I'll pass along your advice to the court, I'm sure it will be appreciated.
It's not my opinion, it's the plain fact of the matter, not only that they do make law, but they are constitutionally authorized and duty-bound to do so, and that has been settled law in this country for over 200 years.
To the layman, the term "law" is generally understood to mean "statutes", like those passed by a legislative body. But to a legal professional, that same term encompasses, the Constitution, the statutes as well as the decisions that interpret the Constitution and the statutes.
So using the layman's limited definition, no, a judge may not "make law". But when applying the a real definition of the word "law", it is completely correct to state that judges make law.
Appreciate the heads up. ;-)
Ouch! This is gonna sting a bit, but you've completely mis-read the 14th clause.
I posted it below, so you can note that there is no comma between "government" and "and regulation", meaning that "government and regulation are a single phrase referencing "the land and naval Forces". Clause 14 has nothing to do with "making rules for the government" in the sense of the three co-equal branches of government, it refers only to the military. Note also, the common military related theme in clauses 11-16.
As I said, the relevant clause is the 18th, the "Necessary and Proper" clause...
"To make Rules for the Government and Regulation of the land and naval Forces;"
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