[Boot Hill]

Sandy:   "Presidential authority vs. Congressional authority to enact FISA...has never been decided by a court."

I sorry, but you're simply in error. The following holdings are just too close on point to leave much room for doubt...

"However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."

--United States v. Brown, 484 F.2d 418, 426 (1973)

"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."

--U.S. v. Truong Dinh Hung, 629 F.2d 908, 913 (1980)

"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."

--United States v. Duggan, 743 F.2d 59 (1984)

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."

--In re Sealed Case, 310, F3d. 717, 742 (2002)

"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."

--In re Sealed Case, 310, F3d. 717, 742 (2002)

Sandy:   "as I've already pointed out more than once, Congress's power is granted specifically in the Constitution, and the President's power isn't."

So you wish to create a two-tiered system of constitutional powers based upon the false dichotomy of inherent versus explicit powers and undo 200 years of jurisprudence?

Sandy:   "Of course, contrary to your claim that numerous appellate courts have already done so, FISA has never been declared unconstitutional. "

Oops, now you're putting words in my mouth, I've never claimed that "numerous appellate courts have already...declared [IFSA] unconstitutional", those are your words, not mine. What I have said, is that leading case on the matter has concluded that "FISA could not encroach on the President’s constitutional power".

Sandy:   "If you think I'm ignoring it..."

I never said that.

Sandy:   "Just because I don't accept your assertion that FISA is unconstitutional"

Once more, my contention is simply to quote the conclusion of the In re: Sealed Case court when they said "FISA could not encroach on the President’s constitutional power".

Sandy:   "you only stated that we can't take the funds away without some appropriate reason"

Incorrect, I said without some constitutional reason. It would be unconstitutional to remove those funds with the express purpose (your hypothetical) of undermining a constitutional power of the executive branch.

[Sandy]

"FISA could not encroach on the President’s constitutional power".

So what? You're the one claiming that FISA encroaches on the President's authority, not me. Do you see no distinction between Congress's ensuring that the President doesn't act beyond his constitutional authority and Congress's actually encroaching on the President's actual constitutional authority?

Bottom line, the President has no constitutional authority to either abuse or act beyond his constitutional authority. FISA prevents exactly that--Presidential abuse of authority and Presidential actions not Constitutionally authorized. Please, show me one provision in FISA that prevents the President from performing any acts which he is constitutionally authorized to do.