Presidential power is in the details

Two prominent law  bloggers say that the Specter Bill punts and that the Addington/Yoo contentions about presidential power to monitor communication under FISA have won the day stealthily.

Orin Kerr: Maybe I'm missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it believes are unconstitutional because they infringe on the Commander—in—Chief power.

Congress can certainly do this, of course: Congress passed FISA, and it can repeal or water it down as well. And of course different people will have diffferent views on whether this is a good idea. But it does seem like this is a major shift in approach, and one that is probably more important in the long run than whether the NSA domestic surveillance progam is submitted to the FISA court for review. 

Balkin: Specter's proposed legislation, if passed in its present form, would give President Bush everything he wants. And then some. At first glance, Specter's bill looks like a moderate and wise compromise that expands the President's authority to engage in electronic surveillance under a variety of Congressional and judicial oversight procedures. But read more closely, it actually turns out to be a virtual blank check to the Executive, because under section 801 of the bill the President can route around every single one of them. Thus, all of the elegant machinery of the bill's oversight provisions is, I regret to report, a complete and total sham. Once the President obtains the powers listed in section 801, the rest of the bill is pretty much irrelevant. He will be free of Congressional oversight forever.

Clarice Feldman    7 14 06

Two prominent law  bloggers say that the Specter Bill punts and that the Addington/Yoo contentions about presidential power to monitor communication under FISA have won the day stealthily.

Orin Kerr: Maybe I'm missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it believes are unconstitutional because they infringe on the Commander—in—Chief power.

Congress can certainly do this, of course: Congress passed FISA, and it can repeal or water it down as well. And of course different people will have diffferent views on whether this is a good idea. But it does seem like this is a major shift in approach, and one that is probably more important in the long run than whether the NSA domestic surveillance progam is submitted to the FISA court for review. 

Balkin: Specter's proposed legislation, if passed in its present form, would give President Bush everything he wants. And then some. At first glance, Specter's bill looks like a moderate and wise compromise that expands the President's authority to engage in electronic surveillance under a variety of Congressional and judicial oversight procedures. But read more closely, it actually turns out to be a virtual blank check to the Executive, because under section 801 of the bill the President can route around every single one of them. Thus, all of the elegant machinery of the bill's oversight provisions is, I regret to report, a complete and total sham. Once the President obtains the powers listed in section 801, the rest of the bill is pretty much irrelevant. He will be free of Congressional oversight forever.

Clarice Feldman    7 14 06