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Monday, March 20, 2006

More Fisking of Feingold

Shark and Shepard has an outstanding piece that deconstructs Russ Feingold and his Censure proposal.

Of note to me was this passage:
United States v. Duggan, 743 F.2d 59 (2d Cir. 1984), in which the court said:Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

I bolded that passage because it's very important to understand the difference between inherent powers and legislated powers.

Inherent powers are those derived from the Constitution, they can't be legislated away. Just like the President can't sign an executive order removing Congress's inherent power to lay taxes, or originate spending, they can't write legislation designed to limit inherent powers of the President.

FISA itself appears to be such an attempt, but has never been tested in the courts, however, if the 2nd Circuit's statement is correct, FISA would probably be tossed and an unconstitutional encroachment of the President's power as Commander in Chief.

Go over an read the rest of Rick's piece at Shark and Shepard, and thanks to Charlie for pointing this article out to me.

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4Comments:

Blogger shoprat said...

It won't change the mind of anyone in the MSM because they will just say Bush stacked the courts.

8:12 PM  
Blogger Little Miss Chatterbox said...

Bush made an awesome statement in his press conference today. He said if you don't believe in terrorist surveillance than why don't you campaign on that. Vote for me, I'm against terrorist surveillance. I thought that was great.

He was calling Feingold and the other dems on their bluff. They want to condemn Bush for listening to terrorists' phonecalls but they can't actually come out against the actual practice.

5:56 PM  
Blogger Poser said...

Didn't US v. Duggan itself backed up the Constitutionality of FISA by rejecting a Fifth Amendment challenge to it? I don't have any law books, and I can't find case law online that goes beyond the 90s.

I'm pretty much done worrying about this stuff until the Supreme Court handles it.

12:58 AM  
Blogger Crazy Politico said...

Duggan only covered the 4th and 5th Amendment challenges, which the court sided with the Government on. What Bush, and the AG are saying is that Article II gives him the inherent right to proceed with the program.

The passage from Duggan quoted above is part of their reasoning on that.

4:01 AM  

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