Debra_Law wrote: Even if we (the PEOPLE of the United States) assume that the President had inherent constitutional power to conduct warrantless searches to obtain foreign intelligence information, Congress has chosen to regulate that power. We (the PEOPLE) KNOW that Congress has EXPLICIT constitutional power to make rules for government. We KNOW that Congress has EXPLICIT power to enact laws to regulate the manner in which the PRESIDENT may execute his constitutional powers.
Let me add an observation from an originalist point of view. I looked up that clause in "The Founder's Constitution", a reference book that seeks to illuminate the founding-era understanding of its language. (
Link here.) I could not find a single founding-era reference restricting Congress's power to regulate the executive's conduct of the war. But I did find a reference to Joseph Story's discussion of that power in his
Commentaries . It makes it very clear that Congress's ability to restrain the executive's war-making power is a deliberate feature of the constitution, not a bug in it.
Joseph Story wrote:In Great Britain, the king, in his capacity of generalissimo of the whole kingdom, has the sole power of regulating fleets and armies. But parliament has repeatedly interposed; and the regulation of both is now in a considerable measure provided for by acts of parliament. The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive.
The "Commander in Chief" section of "The Founder's Constitution" (
link here) points to even more founding era documents. They explicitly acknowledge the dangers to a free country that would arise if the president, as commander in chief, had unrestrained power. Here again, early legal commentators explicitly refer to the powers of Congress to regulate and restrain the president. As founding-era interpretations of the constitution clearly show, the need to counterbalance effective war-making with the protection of a free society runs as a continuous thread throughout your early constitutional history. Nothing fundamental about President Bush's claims is new in this regard.
As every reader can confirm with a Google search, you and I, Debra, have had many disagreements about originalism. I know you don't have too much respect for my approach to reading the constitution. Therefore I find it important to point out that in this case, your approach and mine seem perfectly compatible. The legal activists in this case are the conservatives, who want courts to re-write the constitution rather than applying it. Even worse, they want the president to secretly re-write it, too. Please, Debra, accept my apologies for the severe lack of principle that my fellow originalists are showing in this thread. I am sure they will eventually come to their senses.
