For anyone interested in a quick, Cliff-Notes version, of the new Cato Report on Mr. Bush’s constitutional record, listen to the podcast interview of my co-author Gene Healy.

The government says it wants everyone’s phone records so that it can thwart acts of terrorism. Said one administration spokeswoman: “This is terrorist surveillance, not domestic surveillance.”

But does anyone really believe that ABCNews reporters are part of an al-Qaeda sleeper cell?

The phone records program may have already morphed into just a criminal investigative tool for the government. If that turns out to be accurate, it is deeply disturbing.

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.

As I noted in an earlier post, I’m supportive of Bob’s legal argument that the President’s NSA surveillance program is illegal and unconstitutional. (My level of certainty on this: moderate). But for me this doesn’t settle the matter. There’s a separate question: What should the Supreme Court do about it?

For me, this is the hard but all important question. In Baker v. Carr, the Court suggested (in so many words) that justices may want to avoid resolution of a constitutional question if, for example, there is a significant chance another branch might ignore its decision. The reason for this seemingly weak-kneed approach to constitutional adjudication is straightforward. The Supreme Court, a tribunal of nine geriatric lawyers, doesn’t have much muscle. It can’t arrest a recalcitrant President. It relies on the force of its mystique as the oracle of our fundamental law and its soft political power to confer public legitimacy on political branch actions. That’s generally enough to compel the grudging respect and deference of Congress and the President. But in extraordinary times, its possible that a headstrong President convinced of the rightness of his mission, and backed by popular support and a waffling Congress, might simply ignore the Supreme Court. If that happens too often, the Court risks losing its power to command. And a disrespected Court that is repeatedly ignored is far, far worse for the long-term protection of liberty than a Court that occasionally ducks the wrong fight.

So what should the Court do about the NSA surveillance program?

There are seven red flags counseling caution:

Let me make two brief and (I hope) final points in response to Roger Pilon’s post of earlier today.

First, Roger asserts that the executive and legislative branches would not be “co-equal” if Congress is permitted “to restrict the president’s powers, as with FISA.” “Congress,” he adds, would then be “supreme, the president its mere agent.” Not true. Before any restrictive measure can become law, it must be passed by Congress and signed by the president. FISA was of course signed by President Carter. Neither successive presidents nor successive legislatures are required to re-validate previously enacted, unexpired statutes. Moreover, FISA was implicitly re-signed by George W. Bush, who helped craft the FISA amendments that are included within the PATRIOT Act and prescribe surveillance warrants.

Second, Roger notes that Congress can always avail itself of the “power of the purse … and simply cut off funds for projects.” My response is threefold: (1) A constitutional regime that would allow Congress to eliminate a project altogether, but not restrict a project, is quite simply incoherent — especially if the project arises, as Roger insists, out of an inherent presidential power. (2) The NSA surveillance program is secret to all but a few members of Congress. Accordingly, Congress might have to de-fund the entire NSA in order to pinpoint and de-fund one program, the scope and function of which is mostly unknown. (3) Even if Congress could de-fund the program itself, that would throw the baby out with the bathwater. Republicans and Democrats alike conjecture that much of the NSA program may be necessary and effective, albeit illegal, in combating terrorism. The responsible remedy is not to de-fund an essential program, but either to change its implementation to comply with the law, or change the law to authorize the program.

With his usual precision, my colleague Bob Levy, in his latest NSA post, has zeroed in on the basic question I put to him: “How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government?” He grants that the president has inherent powers; but so does Congress, he adds, and if Congress expressly restricts the president’s powers, as with FISA, that “is persuasive when deciding whether the president has overreached.”
 
Not so fast. The problem with that is that the branches are then no longer “co-equal.” Rather, Congress is supreme, the president its mere agent—precisely the point I made in our recent debate when I spoke of Congress’s post-Vietnam rewrite of the Constitution in foreign affairs, much as the New Deal Congress did with domestic arrangements.
 
Bob points more precisely, however, to the Necessary and Proper Clause as the source of Congress’s power over the president. But that clause—to reduce a very complex issue to its essence—was written, in the context of the Articles of Confederation, to enable Congress to give effect to its and the other branches’ enumerated powers. As Chief Justice Marshall said in McCulloch v. Maryland (1819), the clause authorizes means that are “really calculated to effect any of the objects entrusted to the government,” like surveillance for national security purposes. When that power is used “improperly” to restrict the inherent power of another branch, serious separation-of-powers issues arise.
 
Congress does have a power to accomplish that end, however: It’s the power of the purse. It can simply cut off funds for projects—yet even here there are separation-of-powers questions that courts have never resolved. Given that the public seems to support the NSA program by 2 to 1, however, Congress is not likely to do that. This leaves us with Fourth Amendment issues, and as I said last time, that’s the business of the courts.
 
Two quick final points on Bob’s most recent post: First, the “parade of horribles” he presents—detention, tribunals, etc.—raises complex treaty and international law issues that are quite different, requiring separate analysis. Second, the animating sentiment at the time of the founding may have been fear of executive power—return of the king. By the time of the framing, however, after 11 years of experience with self-government, the Framers had a far more subtle understanding. As Madison put it in the Virginia ratifying convention, “The sword is in the hands of the British King. The purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.”

In his latest posting, my colleague Roger Pilon restates several of his arguments in defense of the NSA’s warrantless domestic surveillance. Each of Roger’s points has been addressed in detail in our recent debate and in my Senate testimony. For those who prefer a nutshell version of my response, here it is:

Roger asks, “How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government …?” I do not dispute that the president has inherent powers, especially during wartime. The question is not the existence, but rather the scope, of those powers. And because Congress too has wartime powers, an express restriction by Congress, like the FISA statute, is persuasive when deciding whether the president has overreached. 

Indeed, the Constitution specifically authorizes Congress to shape the president’s inherent powers. Article I, section 8 empowers Congress to “make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 

If, as Roger insists, warrantless domestic surveillance is incidental to the president’s inherent powers, so too are sneak-and-peek searches, roving wiretaps, library records searches, and national security letters — all of which were vigorously debated in deciding whether to reauthorize the Patriot Act. Could the president have proceeded with those activities even if they were not authorized by Congress? If so, what was the purpose of the debate? Why do we even need a Patriot Act? 

President Bush has also asserted “inherent powers” to justify military tribunals without congressional authorization, secret CIA prisons, indefinite detention of U.S. citizens, enemy combatant declarations without hearings as required by the Geneva Conventions, and interrogation techniques that may have violated our treaty commitments banning torture. Are those activities outside the president’s wartime authority? If not, what are the bounds, if any, that constrain his conduct?

The animating sentiment at the time of the founding was fear of executive power — return of the king. Against that backdrop, it’s remarkable that the president, with Roger’s apparent approval, now claims to wield unilateral powers with no safeguards — in effect, an irrebuttable presumption of authority, unfettered by Congress or the courts, to do just about anything that he pleases in battling terrorists.