Balkinization: Proof Positive That Arlen Specter Does Not Read Balkinization

Proof Positive That Arlen Specter Does Not Read Balkinization

Marty Lederman

And here I thought everyone did . . .

In tomorrow's Washington Post, Senator Specter has this Op-Ed defending his indefensible so-called "compromise" bill on the NSA/FISA question.

Specter writes:

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 [Specter cites the three courts of appeals decisions, pre-FISA, concerning the President's "inherent" power], 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

If Senator Specter would only bookmark Balkinization, he would know that this is utter malarkey. Whether the President has the "inherent" authority to engage in such surveillance, as those courts of appeals held -- and as I would concede, at least as to some of the NSA program -- tells us absolutely nothing about whether a statute can constitutionally limit that authority, as FISA does. To be or not to be -- whether "the president's constitutional power exists or does not exist" -- is not the question.

This basic misunderstanding of modern separation-of-powers doctrine, and of Youngstown and Hamdan, continues to trip up Specter. (Where's his staff? Haven't they shown him footnote 23 of Hamdan?)

At the end of his Op-Ed, Specter writes: "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."

Here's a better idea: Let the Article III courts decide the lawsuits, currently pending, that raise the question. And if you're looking to get behind some effective legislation, Senator, how about throwing your support to the Schumer bill, which would strengthen the ability of plaintiffs in those cases to keep the cases alive against claims that they don't have standing?

Posted 9:20 PM by Marty Lederman [link]

Comments:

Wasn't Arlen Specter the architect of the JFK "single bullet" theory? Now he's developed a novel theory for separation of powers and national security. Maybe he's brilliant in ways we mere mortals can't fathom; Then again, maybe not.

# posted by

DRJ : 2:11 PM

It's also proof positive that Senator Specter didn't read his own bill in entirety. The language from Justice Jackson's famous concurrence in Youngstown, which is all one needs to read to understand how Congressional action can limit inherent Presidential power, is quoted in full in Section 2(8) of the bill.

# posted by

QuiteAlarmed : 4:00 PM

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# posted by

TonyGuitar : 6:18 PM