March 30, 2006
— Ace What a shock. The NYT and the particular reporter writing the story have both an ideological and professional interest in establishing that Bush acted illegally, and so they write the judges essentially said that.
What they actually said, among other things:
Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?
Judge Kornblum: No President has ever agreed to that. ***
Senator Feinstein: What do you think as a Judge?
Judge Kornblum: I think--as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, "I surrender all of my power to a statute," and, frankly, I doubt that Congress, in a statute, can take away the President's authority, not his inherent authority, but his necessary and proper authority.
Senator Feinstein: I would like to go down the line if I could. *** Judge Baker?
Judge Baker: No, I do not believe that a President would say that.
Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?
Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too. ***
Senator Feinstein: Judge?
Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution. ***
Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?
Chairman Specter: Everybody agrees with that.
Sounds like the judges were saying, pretty clearly, that no act of Congress can take away an inherent power of the president. It's not established, exactly, that the President has such inherent power, but the judges didn't seem to reject the notion out of hand.
Well, no f'ing shit! Man, I slept through my Con Law classes and even *I* know this.
It's amazing how few people in Congress bother to understand the most basic "rules of the road" of the United States Government. I mean, that Constitution is sooo hard to understand, what with it being written over 200 years ago and all.
Dave at Garfield Ridge
Posted by: Dave at Garfield Ridge at March 30, 2006 11:26 AM (y1hCN)
Posted by: Canelone at March 30, 2006 11:29 AM (1Vbso)
Posted by: Sort-of-Mad Max at March 30, 2006 11:31 AM (Ft+og)
Posted by: Monty at March 30, 2006 11:54 AM (/V4PN)
Posted by: Canelone at March 30, 2006 01:48 PM (1Vbso)
I'll pass, thanks.
Posted by: Alexander Hamilton at March 30, 2006 02:41 PM (U33qp)
Posted by: Aaron Burr at March 30, 2006 02:48 PM (Qki3V)
Not even the President is above the law.
But in this admin's interp of the law, the President has unbridled power beyond any Congressional law, simply by declaring war. And as Monty points out, the President can declare war without Congress.
You can build a whole dictatorship out of this one principle, EASILY.
Interestingly, at the time the country was founded, such an interpretation of executive power was not propounded by ANY of the founding fathers.
Because they just fought a war to create a country without that power in one person.
Posted by: at March 30, 2006 05:06 PM (ANynN)
Posted by: Canelone at March 30, 2006 05:58 PM (1Vbso)
Posted by: spurwing plover at March 31, 2006 05:11 AM (Dutrh)
However, one of the primary reasons for junking the AoC in favor of the Constitution was to give a single Executive the power and flexibility to direct national defense.
Posted by: jeff z at March 31, 2006 06:37 AM (v8gGW)
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