[Boot Hill]

Boot Hill:   "The cases I cited made it abundantly clear that the courts were speaking of the President's 'inherent constitutional authority', in others words, a power granted by the Constitution, and therefore a power that may not be infringed upon by Congress."

inquest:   "Actually, Truong did not speak of that. That was purely the invention of the court you quoted at the bottom."

That's demonstrable incorrect, the Truong court was quite explicit about the matter and went to great pains to write in length about "Foreign Intelligence Exception to the Warrant Requirement" [629 F.2d 908, 912].

They first noted the government's argument that "the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs", and the court next included the observation that: "The district court accepted the government's argument that there exists a foreign intelligence exception to the warrant requirement" and finally concluded that: "We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance" [629 F.2d 908, 913].

inquest:   "Truong (a case arising out of a pre-FISA action but decided after FISA was passed)..."

Whether pre-FISA or post-FISA, it really doesn't matter, because the underlying principle that the Constitution trumps the ordinary acts of Congress (like FISA), is foundational to our system of government and has been settled law in this country for over 200 years [Marbury v. Madison, 5 U.S. 137, 178 (1801)].

inquest:   "This whole business of saying that the President has "inherent" powers that not even Congress can infringe on is completely specious."

If the court's holding is so "specious" as you say, and since we have a government made up of three co-equal branches, for your argument to be rational it must apply in the converse, as well. Please tell me which powers of Congress can the President infringe upon?

inquest:   "The Constitution gives the President not only explicit power but an explicit command to see to it that the laws are enforced, yet no one seriously disputes that Congress can regulate how this is done."

Nobody? Not even the Constitution? What do you think CJ John Marshall meant by the following...

"Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."

--Marbury v. Madison, 5 U.S. 137, 178 (1801)

inquest:   "And yet we're asked to believe, even 'take it for granted', that powers that aren't explicitly granted to him by that document are somehow completely untouchable by Congress."

It sounds as if you'd prefer a two-tiered Constitution, one made up of explicit powers and authorities and a second and subordinate sub-Constitution of inherent powers. The fact is that the courts, as well as common sense, dictate that if the authority is "inherent", then that is no different than if it had been "explicit". And yes, the powers granted the President by the Constitution ARE untouchable by Congress.

[inquest]

They first noted the government's argument that "the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs", and the court next included the observation that: "The district court accepted the government's argument that there exists a foreign intelligence exception to the warrant requirement"

"Taking note of" a litigant's argument in no way implies that they agreed with it. Same goes for taking note of an argument made by the court below. As you noted, all it agreed with was the position that the executive branch need not "always" (hardly a sweeping pronouncement, there) obtain a warrant to conduct foreign-intelligence surveillance. It did not base that conclusion on the inherent, allegedly untouchable powers of the President. It based it instead on the practical difficulties involved when a court, which has little to no expertise in foreign-intelligence gathering, tries to second-guess the President's judgment in that arena. The Truong court then explicitly noted that FISA deals with that problem by creating a court that would have the requisite expertise.

It sounds as if you'd prefer a two-tiered Constitution, one made up of explicit powers and authorities and a second and subordinate sub-Constitution of inherent powers.

If anything, it's you who's arguing the converse, which is that implicit powers are of a higher order than explicit powers. After all, how is it that the 4th amendment restricts how the President sees to it that the laws be faithfully executed (an explicitly granted power), but doesn't restrict how he conducts foreign policy (a power not explicitly granted)?

And yes, the powers granted the President by the Constitution ARE untouchable by Congress.

That would have to mean that the Posse Comitatus Act, among others, is unconstitutional, since it undoubtedly interferes with the President's discretion as to how to enforce the laws.