A bit ago Bob Levy posted what he said he hoped would be two brief “final points” on our NSA exchange. I responded – just to him. He wrote back, suggesting that I post the response as “the last word” between us. Here it is:
Point 1: When President Carter signed the FISA bill, his attorney general, Griffin Bell, said it “does not take away the power of the president under the Constitution.” Either he’s wrong, in which case Congress is supreme; or he’s right, and FISA is merely precatory. Further on Bob’s first point, one can “explain” President Bush’s signing as his playing both sides – statutory and constitutional: (a) he didn’t want to pick a fight with Congress so he signed the bill, believing that the AUMF overrode it in any event; (b) he didn’t want to pick a fight, believing he had inherent power in any event. It’s hard to know just why he signed it, of course, or what implications can be drawn from that.
Point 2: Bob is right, to be sure, that it seems incoherent for Congress to have the greater power to defund a program but not the lesser power to regulate it. But that, I argue, is the Constitution we have. Perhaps this helps to explain it: Given the range of foreign affairs powers the president has that are inherent in the “executive Power,” the Framers wanted to place only certain checks in Congress’s hands, because regulatory checks beyond those they enumerated would begin to compromise the unitary executive, tending toward a co-presidency (as happened under the Articles in some states). So Congress was left with a few foreign-affairs regulatory powers – which Jefferson, Hamilton, and Madison all said were to be “strictly construed” – but mainly with the power of the purse, much like the arrangement that had evolved in England, with which they were familiar. Finally, pinpoint defunding of a secret program should not be a problem. Pinpoint funding is done by using obfuscatory “black hole” language.