The DC Circuit decision
Sealed Case is the Right's life raft in their desperate attempt to escape the NSA Titanic. Just this afternoon, my right wing email correspondent sent me a link to today's
NRO Online in which a 2/27 article by noted legal scholar Byron York is resurrected to supposedly show that under
Sealed Case, Bush has done nothing wrong.
The Sealed Case phony authority has been explained by Anonymous Liberal among others, but it continues to rear it's ugly head. I seen a need for concerted efforts by blogs and liberal publications to repeatedly and convincingly drive a stake through Sealed Case
The problem is that
Sealed Case has a line stating that "FISA could not encroach on the president's inherent authority." Anonymous Liberal's argument is as follows:
Bush's defenders are attributing far more meaning to that one line in Sealed Case than the context will bear. The court merely noted, in a line that had nothing to do with the holding of the case, that "FISA could not encroach on the president's inherent authority." First, the court clearly means "exclusive" authority here, but sloppily uses the term "inherent" authority. It is beyond dispute that much of the president's inherent authority is nothing more than default authority to act when congress has chosen not to. It is only in the area of exclusive powers (like the pardon power) that the Congress cannot encroach. Second, the Court was not suggesting that FISA did in fact encroach on any exclusive authority of the president, merely that it could not(which is a totally uncontroversial statement). Third, the court in Sealed Case held that FISA was constitutional ("We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.") It is absurd to suggest that in a toss away line in a case upholding FISA's constitutionality the court really meant to suggest that FISA unconsitutionally encroaches on the President's exclusive power.
The key is the distinction between "default" and "exclusive" inherent powers. Congress cannot encroach on exclusive powers (e.g., the right to pardon). Congress can encroach on "default" inherent powers. "Default" inherent powers are powers about which Congress has not yet ruled. Prior to FISA, warrantless wiretapping was a "default" inherent power (although Courts had not yet determined whether the 4th amendment might preclude that also). After FISA, Congress had stepped in and limited the President's power to do this.
The relevant case is Youngstown. No serious Constitutional scholar (right or left) believes that Sealed Case's dictum is at all applicable. It's a desperate after the fact justification for the administration's lawbreaking.
But it's still a "lifeline" to which the right clings.