In his speech on the Senate floor today, Senator Feingold mentioned Justice Jackson's concurring opinion in the case Youngstown Sheet and Tube Co. v. Sawyer (1952). Here is an especially relevant portion:
- When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate...
- When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures of independent presidnetial responsibility....
- When the President takes measures incompatible with the expressed or implied will of Cogress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter....
Clearly, the warrantless spy program, which directly conflicts with FISA, falls into the third category. The Youngstown case dealt with Presidential seizure of steel mills during the Korean War, but the implications are the same: Even during times of war, the President has little leeway to act in conflict with Congressional statutes.