More Thoughts On Illegal Spying

I ran across this justification for the actions of George W. Bush on another blog:

since such laws, in those particular spheres of Constitutional power, amount to nothing more than nonbinding Congressional suggestions as to how the President might best wield the authority assigned to him, and not to Congress, by the Constitution.

The gentleman who kited this out, of course, is talking through his hat. The relevant precedents go back to British Common Law establishing that even the King is not above the law.

In America, the case law starts here:

MARBURY V. MADISON [1803]

This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.

Therefore, the President cannot order his officers to disobey the law.

EX PARTE MILLIGAN [1866]

If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.

Therefore, "War Powers" can only apply when corresponding civil and legal authority do not exist. The FISA court is exactly such civil and legal authority and cannot be circumvented.

YOUNGSTOWN CO. v. SAWYER--Primary Ruling [1952]

In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [343 U.S. 579, 588] first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." After granting many powers to the Congress, Article I goes on to provide that Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Therefore, Congressional lawmaking power is absolute and not merely "suggestions" which the President may or may not follow. This is more explicitly delineated in Justice Douglas' concurring opinion in the same decision.

Article II which vests the "executive Power" in the President defines that power with particularity. Article II, Section 2 makes the Chief Executive the Commander in Chief of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs. Article II, Section 3 provides that the President shall "from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate. Article II, [343 U.S. 579, 633] Section 3 also provides that the President "shall take Care that the Laws be faithfully executed." But, as MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER point out, the power to execute the laws starts and ends with the laws Congress has enacted.

We'll have this all out in November of 2006. Beyond the "legal powers" issue is something far more fundamental: what this country will become.

There is no particular reason why, with the cooperation of enoungh citizens, the United States cannot be transformed into a Garrison State, like Israel, with institutions that are democratic in form but authoritarian in conduct. In November of 2006 we will see if that is going to happen.

But if my good conservative friends cannot see that what has happened with this issue is part of a radical transformation of this country in that direction, they are fools.

And I would post a warning to them all. There is absolutely no reason why an Authoritarian Democracy cannot work to the great advantage of other political and social views than yours. Give careful consideration to the powers you wish to grant to George W. Bush in the hands of Bill Clinton and Janet Reno. Or even Hillary Clinton.

Nothing lasts forever. Not even a Republican political majority in government.