Tuesday, January 31, 2006

FISA, Terrorists, and Presidential Power

The problem with the current surveillance dispute is that the issue ultimately is not what rights are given to terrorists or how the nation should protect itself from them. The issue is what right the President has to ignore an ill-conceived law rather than persuade Congress to amend or repeal it.

Unless the very general language of the authorization to pursue the war on terror can be viewed as overriding the very detailed (foolishly overly detailed) FISA provisions, we have a clear case of the President acting contrary to the expressed will of Congress. Applying Justice Jackson's Steel Seizure analysis, such a move by the President must fail unless the President has authority to act and Congress clearly has none. Such cases exist, see Padelford and Klein (which address a Congressional attempt to interfere with the pardon power) and Meyers (Congressional interference with the power to remove executive officials). This case appears not to fit those precedents.

The President's broad powers with relation to foreign affairs and as commander in chief do not give him power independent of Congress to deal with domestic affairs. This case is a virtual carbon copy of Steel Seizure.

What is doubly troubling about this scenario is that the administration views opposition to its position as disloyal. Many voters have turned to the Republican Party because the Democratic Party has rejected democracy -- preferring instead to impose its wisdom on the masses by whatever means are available (presently the courts). (In another era and another hemisphere, the current Democratic Party position was referred to as Democratic Centralism.)

If the Republican Party takes the position that the President can ignore the law, it has lowered itself to the Democrats' position. An all-powerful executive is just as much a rejection of our Constitution as an all-powerful judiciary. Will the American electorate no longer have any major party that honors our Constitutional democracy?

Also Honoring Justice O'Connor

Orin Kerr at the Volokh Conspiracy posted public thanks to Justice O'Connor and invited others to do the same. Regrettably, this brought out a number of impolite and intemperate remarks. He, correctly, deleted the thread and turned off the comments.

Have we really sunk so far in our public discourse that one cannot politely acknowledge the contributions of a public servant regardless how much one disagreed with her?

Justice O'Connor has served for twenty-four years. She has been an intelligent and dedicated jurist. She has worked, especially in the past year, at great personal sacrifice, and she deserves great honor for all she has done. Scholars and other observers have had twenty-four years to analyze and critique her work, and there will be ample opportunity for more of that work in the future. For today, let's set aside our occasional differences and celebrate a fine career completed by a fine woman who has made significant contributions to our nation. May God bless her with peace in the final years she spends with her husband and with a long and blessed life.