America... Spying on Americans

You still don't make any sense, Ticomaya. You are trying to tell us that the law is fully erect having lawful force and effect pursuant to Congress's EXPLICIT constitutional power to make rules for government (even at times of war) EXCEPT when the president straps on the dildo that he calls his "inherent" powers because he is totally placcid otherwise. I don't buy your argument at all.

That's what I've been saying, Ticomaya. Your argument that the statute is constitutional except when its not constitutional--when the president straps on his "inherent powers"--is nonsensical.

FISA is constitutional. Accordingly, it is a crime for the president or any other government official to violate it. The president doesn't have any "inherent powers" to override, ignore, or evade a duly enacted federal statute.

shakes head in dis-belief was thinking DL and T were on the same team

Debra_Law wrote:

That's what I've been saying, Ticomaya. Your argument that the statute is constitutional except when its not constitutional--when the president straps on his "inherent powers"--is nonsensical.

It's not constitutional to the extent it encroaches upon any inherent power possessed by the President.

FISA is constitutional. Accordingly, it is a crime for the president or any other government official to violate it. The president doesn't have any "inherent powers" to override, ignore, or evade a duly enacted federal statute.

Talk about nonsensical ... you need to reread that last sentence. If Congress "duly enacts" a statute that, for instance, makes it illegal for the President to make recess appointments, that statute is unconstitutional, and the President has every right to make recess appointments in spite of it. And if that statute is part of a larger legislative act, the remainder of which does not encroach upon any power granted to the President, the remainder of the act is not unconstitutional. The President need not "strap on" anything.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

. . or outside the law?
By Bruce Fein
December 28, 2005


President Bush secretly ordered the National Security Agency (NSA) to eavesdrop on the international communications of U.S. citizens in violation of the warrant requirement of the Foreign Intelligence Surveillance Act (FISA) in the aftermath of the September 11, 2001, abominations.
The eavesdropping continued for four years, long after fears of imminent September 11 repetitions had lapsed, before the disclosure by the New York Times this month.
Mr. Bush has continued the NSA spying without congressional authorization or ratification of the earlier interceptions. (In sharp contrast, Abraham Lincoln obtained congressional ratification for the emergency measures taken in the wake of Fort Sumter, including suspending the writ of habeas corpus).
Mr. Bush has adamantly refused to acknowledge any constitutional limitations on his power to wage war indefinitely against international terrorism, other than an unelaborated assertion he is not a dictator. Claims to inherent authority to break and enter homes, to intercept purely domestic communications, or to herd citizens into concentration camps reminiscent of World War II, for example, have not been ruled out if the commander in chief believes the measures would help defeat al Qaeda or sister terrorist threats.
Volumes of war powers nonsense have been assembled to defend Mr. Bush's defiance of the legislative branch and claim of wartime omnipotence so long as terrorism persists, i.e., in perpetuity. Congress should undertake a national inquest into his conduct and claims to determine whether impeachable usurpations are at hand. As Alexander Hamilton explained in Federalist 65, impeachment lies for "abuse or violation of some public trust," misbehaviors that "relate chiefly to injuries done immediately to the society itself."
The Founding Fathers confined presidential war powers to avoid the oppressions of kings. Despite championing a muscular and energetic chief executive, Hamilton in Federalist 69 accepted that the president must generally bow to congressional directions even in times of war: "The president is to be commander in chief of the Army and Navy of the United States. In this respect, his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces; while that of the British king extends to declaring war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature."
President Bush's claim of inherent authority to flout congressional limitations in warring against international terrorism thus stumbles on the original meaning of the commander in chief provision in Article II, section 2.
The claim is not established by the fact that many of Mr. Bush's predecessors have made comparable assertions. In Youngstown Sheet & Tube v. Sawyer (1952), the U.S. Supreme Court rejected President Truman's claim of inherent power to seize a steel mill to settle a labor dispute during the Korean War in reliance on previous seizures of private businesses by other presidents. Writing for a 6-3 majority, Justice Hugo Black amplified: "But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested in the Constitution in the Government of the United States."
Indeed, no unconstitutional usurpation is saved by longevity. For 50 years, Congress claimed power to thwart executive decisions through "legislative vetoes." The Supreme Court, nevertheless, held the practice void in Immigration and Naturalization Service v. Chadha (1983). Approximately 200 laws were set aside. Similarly, the high court declared in Erie Railroad v. Tompkins (1938) that federal courts for a century since Swift v. Tyson (1842) had unconstitutionally exceeded their adjudicative powers in fashioning a federal common law to decide disputes between citizens of different states.
President Bush preposterously argues the Sept. 14, 2001, congressional resolution authorizing "all necessary and appropriate force against those nations, organizations or persons [the president] determines" were implicated in the September 11 attacks provided legal sanction for the indefinite NSA eavesdropping outside the aegis of FISA. But the FISA statute expressly limits emergency surveillances of citizens during wartime to 15 days, unless the president obtains congressional approval for an extension: "[T]he president, through the attorney general, may authorize electronic surveillance without a court order... to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress."
A cardinal canon of statutory interpretation teaches that a specific statute like FISA trumps a general statute like the congressional war resolution. Neither the resolution's language nor legislative history even hints that Congress intended a repeal of FISA. Moreover, the White House has maintained Congress was not asked for a law authorizing the NSA eavesdropping because the legislature would have balked, not because the statute would have duplicated the war resolution.
As Youngstown Sheet & Tube instructs, the war powers of the president are at their nadir where, as with the NSA eavesdropping, he acts contrary to a federal statute. Further, that case invalidated a seizure of private property (with just compensation) a vastly less troublesome invasion of civil liberties than the NSA's indefinite interception of international conversations on Mr. Bush's say so alone.
Congress should insist the president cease the spying unless or until a proper statute is enacted or face possible impeachment. The Constitution's separation of powers is too important to be discarded in the name of expediency.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

Ticomaya wrote:

Talk about nonsensical ... you need to reread that last sentence. If Congress "duly enacts" a statute that, for instance, makes it illegal for the President to make recess appointments, that statute is unconstitutional, and the President has every right to make recess appointments in spite of it. And if that statute is part of a larger legislative act, the remainder of which does not encroach upon any power granted to the President, the remainder of the act is not unconstitutional. The President need not "strap on" anything.

Your argument is ridiculous. Read the Constitution, Article II, Section 2:

Quote:

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

The president has EXPLICIT constitutional power set forth in the Constitution to make recess appointments.

Accordingly, your reference to the president's EXPLICIT constitutional power to make recess appointments does not support your assertion that FISA is not constitutional to the extent it encroaches upon any INHERENT power possessed by the President.

Your argument is completely without merit and was specifically REJECTED by the Supreme Court in Youngstown.

I'm aware the President has the explicit constitutional power to make recess appointments. But that doesn't make my argument "ridiculous."

I was attempting to make a point. After all, your prior statement that I was responding to was: "The president doesn't have any "inherent powers" to override, ignore, or evade a duly enacted federal statute." Are you now ready to admit that statement of yours was incorrect?

Debra_Law wrote:

Ticomaya wrote:

Talk about nonsensical ... you need to reread that last sentence. If Congress "duly enacts" a statute that, for instance, makes it illegal for the President to make recess appointments, that statute is unconstitutional, and the President has every right to make recess appointments in spite of it. And if that statute is part of a larger legislative act, the remainder of which does not encroach upon any power granted to the President, the remainder of the act is not unconstitutional. The President need not "strap on" anything.

Your argument is ridiculous. Read the Constitution, Article II, Section 2:

Quote:

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

The president has EXPLICIT constitutional power set forth in the Constitution to make recess appointments.

Accordingly, your reference to the president's EXPLICIT constitutional power to make recess appointments does not support your assertion that FISA is not constitutional to the extent it encroaches upon any INHERENT power possessed by the President.

Your argument is completely without merit and was specifically REJECTED by the Supreme Court in Youngstown.

I'm aware the President has the explicit constitutional power to make recess appointments. But that doesn't make my argument "ridiculous." I was attempting to make a point. After all, your prior statement that I was responding to was: "The president doesn't have any "inherent powers" to override, ignore, or evade a duly enacted federal statute." Are you now ready to admit that statement of yours was incorrect? You appear to be trying to draw a distinction between "explicit" and "inherent" authority ... but you're not articulating it very well.

And I do not believe my argument was specifically rejected by Youngstown. I believe that is just another example where you are making a broad and inaccurate statement. I admit Jackson's concurrence indicates the President's power is at its lowest in the situation I'm describing, but I don't see where it's rejected. But I'd be interested in seeing any quotes from the opinion where you believe it specifically rejects my argument.

Your attempt to justify your erroneous argument by referring to the president's express constitutional power to make recess appointments is without merit. Congress did not enact a law that prohibits the president from making recess appointments. Those appointments are only temporary and Congress still has the power to confirm or deny the appointment during its next legislative session. The President has no power to override a congressional refusal to confirm one of his recess appointments. Likewise, the President has no power to override a constitutional statute.

I've already posted a link to Youngstown. I've provided excerpts from Youngstown. It doesn't take a rocket scientist to read Youngstown and apply the rationale to the current situation wherein the president issued an executive order authorizing government employees and officials to conduct domestic surveillance of United States persons without court approval in violation of FISA. Your argument concerning the president's inherent powers was rejected by Youngstown.

Quote:

I was attempting to make a point. After all, your prior statement that I was responding to was: "The president doesn't have any "inherent powers" to override, ignore, or evade a duly enacted federal statute." Are you now ready to admit that statement of yours was incorrect?

Huh? In other words, the President has inerent powers to break the law?

Ticomaya wrote:

Debra_Law wrote:

That's what I've been saying, Ticomaya. Your argument that the statute is constitutional except when its not constitutional--when the president straps on his "inherent powers"--is nonsensical.

It's not constitutional to the extent it encroaches upon any inherent power possessed by the President.

Your statement doesn't make any sense. Congress has explicit constitutional authority to make rules for government. Accordingly, Congress has constitutional authority to make the rules of government with respect to governmental domestic electronic surveillance of United States persons. The president has NO POWER to circumvent FISA. The president has no "inherent" power to establish his own secret and unchecked domestic electronic surveillance program of United States persons that bypasses the procedural safeguards established by Congress in FISA and designed to minimally protect United States persons from governmental abuse of power.

Where in the Constitution do you find any authority for the President to invoke undefined inherent powers as a means to circumvent duly enacted laws that Congress has the legislative power to enact?

You need to review YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952).

Debra_Law wrote:

Ticomaya wrote:

Debra_Law wrote:

That's what I've been saying, Ticomaya. Your argument that the statute is constitutional except when its not constitutional--when the president straps on his "inherent powers"--is nonsensical.

It's not constitutional to the extent it encroaches upon any inherent power possessed by the President.

Your statement doesn't make any sense. Congress has explicit constitutional authority to make rules for government. Accordingly, Congress has constitutional authority to make the rules of government with respect to governmental domestic electronic surveillance of United States persons. The president has NO POWER to circumvent FISA. The president has no "inherent" power to establish his own secret and unchecked domestic electronic surveillance program of United States persons that bypasses the procedural safeguards established by Congress in FISA and designed to minimally protect United States persons from governmental abuse of power.

Where in the Constitution do you find any authority for the President to invoke undefined inherent powers as a means to circumvent duly enacted laws that Congress has the legislative power to enact?

You need to review YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952).

In your last effort to deflect and detract, you failed to respond to the above. I'm still waiting . . . .

Debra_Law wrote:

Your attempt to justify your erroneous argument by referring to the president's express constitutional power to make recess appointments is without merit. Congress did not enact a law that prohibits the president from making recess appointments. Those appointments are only temporary and Congress still has the power to confirm or deny the appointment during its next legislative session. The President has no power to override a congressional refusal to confirm one of his recess appointments. Likewise, the President has no power to override a constitutional statute.

It escapes me why you are spending any time discussing recess appointments, and no time admitting you made an erroneous statement, which my "recess appointment" hypothetical highlighted.

I've already posted a link to Youngstown. I've provided excerpts from Youngstown. It doesn't take a rocket scientist to read Youngstown and apply the rationale to the current situation wherein the president issued an executive order authorizing government employees and officials to conduct domestic surveillance of United States persons without court approval in violation of FISA. Your argument concerning the president's inherent powers was rejected by Youngstown.

Answering questions with questions again, Tico?

Cheers to all; I've been afloat for a week, did anything happen?

Cycloptichorn