A mouth without teeth
By Sean Aqui | Related entries in General Politics, Law, Legislation, Supreme Court, The War On TerrorismIn today’s Washington Post, Arlen Specter defends his flawed deal with the White House over its warrantless surveillance program. His main point:
Critics complain that the bill acknowledges the president’s inherent Article II power and does not insist on FISA’s being the exclusive procedure for the authorization of wiretapping. They are wrong. The president’s constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president’s assertion of inherent executive authority meets the Fourth Amendment’s “reasonableness” test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president’s claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.
That may be his intent, but by not pressing the point he avoids a resolution of the issue. If the president has inherent authority, let’s establish that once and for all. All Specter’s bill does is allow the current murky situation to continue.
And I’m not impressed by this part:
The negotiations with administration officials and the president himself were fierce. The president understandably rejected a statutory mandate to submit his program to FISC, on the grounds that such a mandate could weaken the presidency institutionally by binding his successors. Indeed, such a mandate might not withstand a future president’s contention that it unconstitutionally limited his Article II powers to conduct surveillance without court approval.
Of course the president didn’t want binding restrictions in this matter. So what? The entire purpose of Congressional oversight is to restrict the power of the executive branch. If the president thinks such a restriction is unconstitutional, let him challenge it in court — and resolve the matter once and for all. By refusing to go that route, Specter is giving the administration wiggle room — which, experience shows, Bush will use for all it’s worth.
Specter’s unconvincing final paragraph:
In my opinion, it is intolerable to let this matter drift indefinitely. If someone has a better idea for legislation that would resolve the program’s legality or can negotiate a better compromise with the president, I will be glad to listen.
Okay, here’s mine: write a bill that orders Bush to use the FISA process, or whatever process Congress thinks should be used. Negotiations be damned; let Congress have the cojones to do their job. Then let Bush challenge that bill in court, using his “inherent authority” argument. Have both sides agree to expedited consideration before the Supreme Court. And thus settle the question once and for all.
There are pitfalls to that approach: if the final bill does not have substantial support in Congress, Bush could veto it rather than go the court route. But if the bill is pitched as a simple way to decide the limits of Bush’s authority, it ought to garner reasonably wide support — or at least embarrass Bush into not vetoing it.
An alternative might be to pass a bill that simply asserts Congressional authority in this matter, without specific restrictions — then pass a separate bill containing specific measures. The first bill can be used to force a court decision on the overall constitutionality, while the second is where Congress hammers out the contentious details.
But one way or the other, let’s settle it.
This entry was posted on Monday, July 24th, 2006 and is filed under General Politics, Law, Legislation, Supreme Court, The War On Terrorism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
July 25th, 2006 at 12:06 pm
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July 25th, 2006 at 12:58 pm
say what you want about Specter, but he is one of the very few (democrats most definitely included) that are standing up to the Presidents claims of power. A little late, but at least he’s forcing them to negotiate their postion.
July 25th, 2006 at 2:10 pm
I don’t see why Congress would want to pass legislation which would be challenged in the courts. Sure, they might not get everything they want in a compromise with the Executive Branch, but at least they’d have a say in what compromises were made. If it gets kicked to the Judicial Branch, then the judges get to decide what stays and goes, not Congress.
July 25th, 2006 at 9:00 pm
Well, personally, I think Congress is giving away the store, so I don’ think they have much to lose. But philosophically speaking, the question is ultimately a Constitutional one, and that’s for the Court to decide. Questions like this are too important to be left in doubt.
July 26th, 2006 at 9:57 pm
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July 27th, 2006 at 12:34 am
Specter to Challenge Signing Statements
Sen. Specter Readies Bill to Sue Bush A powerful Republican committee chairman who has led the fight against President Bush’s signing statements said Monday he would have a bill ready by the end of the week allowing Congress to sue him in federal court.
November 15th, 2007 at 9:28 pm
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December 1st, 2007 at 1:00 pm
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