stealthlawprof

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?

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