January 7, 2006


Basis for Spying in U.S. Is Doubted (ERIC LICHTBLAU and SCOTT SHANE, 1/07/06, NY Times)

President Bush's rationale for eavesdropping on Americans without warrants rests on questionable legal ground, and Congress does not appear to have given him the authority to order the surveillance, said a Congressional analysis released Friday.

Luckily, the Constitution doesn't make executive authority dependent on congressional permission, nor that of the judiciary (the Trinitarian position?).

Posted by Orrin Judd at January 7, 2006 9:16 AM

The correct name would be the Jacksonian position:

President Jackson's Veto Message Regarding the Bank of the United States; July 10, 1832

"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."

Posted by: Robert Schwartz at January 7, 2006 10:32 AM

Hmmm, the people who work for Congress think that the ultimate power lies with Congress and the people who work for the President think otherwise. Inconceivable.

Posted by: David Cohen at January 7, 2006 12:31 PM

Coincidentally, the courts say they get to decide....

Posted by: oj at January 7, 2006 12:44 PM

Are they blind or what???? They've crawled out so far on the branch that Bush won't even need to saw it off---it'll break on its own.

Do they even listen to themselves? "The President has the gall to listen in on terrorist who want to kill US citizens---he must be stopped." They think this is a winning message?

Posted by: ray at January 7, 2006 3:37 PM

Keep in mind the principle of judicial restraint. Courts are not to seek out dragons, such as inherent powers, to slay when a matter may resolved more immediately, as by simply deciding a case on the narrowest grounds, in the way that least disturbs the law as it stands.

If standing, or venue does it, then standing or venue it must be. As MR. CHIEF JUSTICE JOHN ROBERTS* put it in one of his opinions, "If it is not necessary to decide more, it is necessary not to decide more."

All this case needs to make it go away is a ruling that communications in and out of the country are outside the statute or that the informatuion gathered by the NSA was not private, and we're good to go. Good to go after the people who leaked and published the story in the first place.

So it is that the theory the the NYT blew this story and sold their country as a mere ploy to give their confederates in congress something to claim justifies a filibuster against Alito gains traction.

*Can't resist it: sort of like "FORMER SOVIET UNION"

Posted by: Lou Gots at January 7, 2006 6:38 PM

Oh that Arlen Specter would haul the FISA judges before the committee and find out who leaked to the WaPo. Perhaps Sensenbrenner would do it.

Posted by: jim hamlen at January 7, 2006 9:10 PM