Armando writes (with excerpts of my posts in italics):
Some conservatives, it appears, favor a little bit of monarchical powers for the President. Orin Kerr, a respected conservative lawyer who blogs at Volokh Conspiracy, appears to be one of those:Nope, no monarchy, and no contradiction. Let me explain a bit more. The legality of the NSA surveillance program raises two different questions: 1) Does the NSA's surveillance program violate a provision of the Constitution?, and 2) Does the NSA's surveillance program violate any constitutionalily valid statutes? The two are quite separate issues: Whether executive branch action violates a statute is different from whether it violates the Constitution. See Dalton v. Specter. (Hat tip: Madisonian)Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.Say what? It is Constitutional for the President of the United States to violate a duly enacted federal law? How does that work exactly? Is FISA unconstitutional? Does the President have plenary powers when acting as Commander in Chief? Well, contradictorily, not according to Kerr:I have been unable to find any caselaw in support of this argument [that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power] Further, the argument has no support from the cases cited in the government's brief. . . . .So how does this work Mr. Kerr? Congress has passed a law that is consistent with the Constitution and the President can disregard it? That's a Constitutional action by the President? Even though the violation of FISA is a crime? Come again? Ahhh, a little bit of monarchy I suppose.
In my post, I argued that the monitoring probably didn't violate the Constitution (and in particular, the Fourth Amendment), but that it probably did violate FISA. This doesn't mean that the monitoring was legal; it only means that of the two possible grounds that it could be illegal, I think it was probably illegal on one ground but not the other ground.
The distinction is a little tricky in this context because some are arguing that Article II renders FISA unconstitutional in some ways. But when I said that the monitoring was probably constitutional, I only meant that the monitoring probably didn't violate the Fourth Amendment; I didn't mean that the Constitution invalidates a statute that makes the monitoring illegal. As Armando notes, I rejected that argument. (And I'm glad to see that the Administration isn't relying on the Article II argument any more, at least if its letter to the Hill last week is an indication. Also, while we're on the topic, check out Joe Onek's very interesting response to the DOJ letter at ACSBlog.)
Finally, I've been meaning to post another write-up on the legality of the NSA program now that we seem to have more facts about what the program actually entailed. My quick skim of the Times' latest piece from Saturday suggests that the legal issues may be different from what I thought they were — or at least, that there is another set of legal issues to work through in addition to the ones I wrote about last week. I'm
UPDATE: Thanks to Armando for posting an update.