If the President can violate a statute, secretly, any time he deems in his sole discretion that the statute contravenes some “inherent power” of the Presidency, then his powers are limited only by his will (and his political judgment about what he can get away with) not by the law.
Of course “the Constitution trumps a statute.” And the Constitution gives to the Congress, not the President, the authority “To make rules for the government and regulation of the land and naval forces.” So if spying is an incident of warfare — which seems reasonable — then regulating how that spying takes place is squarely within the Constitutional ambit of the Congress.
Now that Judge Alito has finally come out of the closet as a royalist, the Senate Democrats have two choices: (1) filibuster to prevent his confirmation or (2) admit that their huffing and puffing about warrantless wiretapping wasn’t really serious in the first place.
Alito says presidents can violate law
‘It would be a rare instance,’ he says
Stewart M. Powell
Jan. 13, 2006 12:00 AM
WASHINGTON – Supreme Court nominee Samuel Alito, pressed on President Bush’s controversial domestic spying policy, told the Senate Judiciary Committee on Thursday that a president has the constitutional authority on “very rare” occasions to violate federal law.
Alito responded to questions from Senate Democrats about Bush’s decision to order secret domestic surveillance without getting the approval of a special court that Congress and President Jimmy Carter set up in 1978 to curb abuses by intelligence agencies.
Alito appeared receptive to Bush administration claims that a president has the authority as commander in chief under the Constitution to embark on a domestic surveillance program without getting approval of the court, as required by the 1978 Foreign Intelligence Surveillance Act.
Citing Bush’s claim that the Constitution hands a president wide leeway to protect the country in time of war, Alito said: “I think it follows from the structure of our Constitution that the Constitution trumps a statute.”
Alito added: “It would be a rare instance in which it would be justifiable for the president or any member of the executive branch not to abide by a statute passed by Congress. It would be a very rare example.”
Bush has defended the super-secret program run by the National Security Agency by claiming the government was trying to eavesdrop on Americans and foreigners in the United States who were receiving telephone calls and e-mails from suspected al-Qaida operatives overseas.
Sen. Dianne Feinstein, D-Calif., said FISA gives presidents wide flexibility to spy on terror suspects inside the United States with approval by the special 11-member court. The FISA statute grants presidents emergency authority to spy on suspects for up to 72 hours before obtaining a court order.
The law makes violations a felony, subject to imprisonment and fines.
If Congress has “explicit authority under the Constitution to pass a law, and we pass that law, is the president bound by that law or does his plenary authority supersede that law?” Feinstein asked Alito.
“The president, like everybody else, is bound by statutes that are enacted by Congress,” Alito said.
But he said a president could violate a statute “if statutes are unconstitutional because the Constitution takes precedence over a statute.”