[Boot Hill]

Sandy:   "Essentially, what you're saying is that we have no choice but to give the President our money and allow him to do whatever he wants with it. Do I have that right?"

Wow, you sure got that wrong! I never said or even suggested any such a thing. That was a terribly disingenuous hyperbole for you to offer. But within the context of the very narrow hypothetical you posted in #316, it would be unconstitutional for Congress to attempt that sort of end run around the Constitution and Marbury, it just wouldn't fly, nor should it ever be allowed to.

Sandy:   "But 'warrantless' doesn't simply mean 'non-Fisa'."

I'm afraid it does. If, as the courts have said, the President has the inherent constitutional authority to conduct warrantless foreign intelligence intercepts, thereby exempting the President from the very tough standards of the 4th Amendment, then it follows that the very same Constitutional principles, would also exempt him from the much less stringent standards imposed by FISA. If the 4th Amendment does not impede the President conduct in the instant case, certainly no act of Congress could, either. It would be illogical to conclude otherwise.

For example, that is precisely what the Sealed Case court meant when it concluded that "FISA could not encroach on the President’s constitutional power", meaning that the President was exempt from both the 4th Amendment's warrant requirements, as well as FISA's requirements for a search order, because both infringed on his authority.

Sandy:   "The FISA procedures themselves are warrantless"

Yes, but they are not "order-less", in other words, they require a court order to enable the search. When discussing this case many have taken liberties with the precise language, like when they loosely refer to NSA intercepts as being "wiretaps", which they most clearly are not. In the same way, many, including myself, have loosely spoke of search warrants to include any lawful authorization from a court of law, including search orders. Sorry for any confusion.

Sandy:   "Can the President conduct warrantless surveillance using any procedure that suits his fancy, or is he required to follow the procedures mandated by law?"

As long as you're speaking of foreign intelligence gathering, the answer is, yes, he can use pretty much any procedure. So says the Constitution, and so says the courts.

Sandy:   "I think a lot of people don't realize that FISA provides for nothing but warrantless surveillance."

Again, that is not exactly so, FISA still requires a court order. I think most people that have been following this issue, understand that nuance and the similar (but not identical) legal requirements.

[Sandy]

If the 4th Amendment does not impede the President conduct in the instant case, certainly no act of Congress could, either. It would be illogical to conclude otherwise.

There's no "certainly" about it. His actions can violate the law without necessarily violating the Constitution.

"Can the President conduct warrantless surveillance using any procedure that suits his fancy, or is he required to follow the procedures mandated by law?"
As long as you're speaking of foreign intelligence gathering, the answer is, yes, he can use pretty much any procedure. So says the Constitution, and so says the courts.

But the courts don't say so. This issue has yet to be addressed. The case most on point to date is the Youngstown steel seizure case, and the President lost that one.