What are the "Inherent" Powers of the President?

Findlaw's Writ ^ | 2-13-06 | Michael Dorf

[Logical me]

"Accordingly, whatever power the President has to order wartime warrantless surveillance of Americans can, constitutionally, be limited by Congress. It is a default power, not an exclusive power."

Then rebuild the warrantless searches under the military. We are fighting for our very own existence and to trust Congress would be the biggest mistake the Country could ever make. If the terrorist continue to grow, like the RATS and the MSM seem to enjoy, they will be so large and with the weapons available, overthrow of the US would be easy. Make no mistake.

[SouthernBoyupNorth]

The Major flaw with this piss ant's analysis is that he assumes these are American citizens under surveillance. NOT! The ones being listened to are Foreign Nationals. They are NOT afforded RIGHTS a US citizen has UNTIL they BECOME a Citizen.

[Bigh4u2]

"regulations for the armed forces does not apply to the NSA, because the NSA is a civilian rather than a military agency."



The NSA is not a 'civilian' agency controlled by Congress, but was established by executive order of President Truman.

"The National Security Agency was created in November 1952 and has provided timely information to U.S. decision makers and military leaders for more than 50 years. However, even before President Truman signed the memorandum establishing the Agency"

[Bigh4u2]

Link to the history of the NSA.

http://www.nsa.gov/history/index.cfm

[Dan(9698)]

This was decided by the FISA court of review in 2003, and the Supreme Court refused to consider it.

And then the Court of Review did one more thing, something that has repercussions in today’s surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the “inherent authority” under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . 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.”

All the pontificating about it is way off the mark.

[Bigh4u2]

But, according to the author, Congress changed the rules with the passing of FISA, and since Congress changed the rule, then, hey, they MUST be right? /sarc

[CharlesWayneCT]

The power to pardon is probably the most dangerous of all powers that the President holds.

For example, if we ever elect a President who opposes capital punishment, they could immediately pardon every prisoner on death row. Or if he thought blacks were discriminated against, he could pardon all black men in prison for drug and other "victimless" offenses.

There is nothing the courts can do to stop him, nothing the congress can do. Nobody can control the president.

The ONLY check we have against a president pardoning criminals is the check of the PEOPLE in voting for a person of character who won't do this.

Which is the SAME check we have for MANY of the things that the democrats now claim are "unchecked power". If we trust the President to pardon criminals, it seems rational to trust the President to appoint a few judges, or even to authorize wiretaps which might pick up domestic conversations.

If the President doesn't use the power wisely, we can vote him out. If he REALLY seems to be causing damage, we can write congress, and they can impeach him. Those are the checks against unbridled presidential use of power.

[antiRepublicrat]

Then rebuild the warrantless searches under the military.

Probably can't because of Posse Comitatus.

[jbwbubba]

What are the "Inherent" Powers of the President?


It means if anything happens to 'W' that Jenna and Barbara become president right?

[Dan(9698)]

But, according to the author, Congress changed the rules with the passing of FISA, and since Congress changed the rule, then, hey, they MUST be right? /sarc

All these things are just to bash Bush.

Congress should have known this ruling before they started the "hearing". The only purpose in holding a "hearing" is to try to harm the country and embarrass Bush.

RINOs are liberals even though they may have R after their name.

[antiRepublicrat]

But, according to the author, Congress changed the rules with the passing of FISA, and since Congress changed the rule, then, hey, they MUST be right?

I can't see a flaw in the author's general point that Congress does have the power to stop the President from doing this. But I don't see in FISA where the President is NOT allowed to eavesdrop on communications going overseas.

So if they really feel the President shouldn't be doing this, Congress is free to enact a law preventing him from doing so, and to try to override his veto.

Wait, nevermind, Bush lost his veto pen, hasn't used it once in office. Maybe he'll find it for this and then start to veto the other crap legislation like the stuff that he's been signing so far.

[jeremiah]

bttt

[inquest]

There had to be some act of Congress under which Truman created the NSA, though. How could it even get funding otherwise?

[inquest]

Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . 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.”

They jumped the gun when they "took this for granted", which is probably why SCOTUS never referred to it. To take their statement to its logical conclusion, FISA itself would have to be declared unconstitutional.

In any case, that statement from the FISA court was just dictum, because it was not pertinent to their ruling in the case (it would have been pertinent if the court had actually rebuffed the attempt to invoke FISA in that case, but that's not what it did). As such, it doesn't have any real precedential value.

[inquest]

The power to pardon is probably the most dangerous of all powers that the President holds.

I disagree, because it's a very public power that's liable to provoke an instant public reaction if it's used abusively. The most dangerous powers are arguably the ones that can be used subtly and behind the scenes.

If the President doesn't use the power wisely, we can vote him out.

And...how do we know whether or not he's using the power wisely?

[mrsmith]

Stephen Dorf, what a hardcore living consitutionalist.

Under the Articles of Confederation the congress could run the war, that power was taken from them in the constitution.

It can be an interesting question at what point exactly the congressional and presidential powers divide. Just claiming the power to make "rules and regulations" as an expressed grant to congress of the power to conduct warfare is not historical or helpful.

Indecisive (IMHO) but helpful essay: Toward a Discretionary Post-9/11 Public Policy that Remains Constitutional: Lessons from the Civil War

[inquest]

Stephen Dorf, what a hardcore living consitutionalist.

Maybe he is. I won't contest that one way or the other.

Michael Dorf, on the other hand, seems to know what he's talking about.

Just claiming the power to make "rules and regulations" as an expressed grant to congress of the power to conduct warfare is not historical or helpful.

Where did he claim that in this piece?

[Bigh4u2]

"How could it even get funding otherwise?"

Defense Department.

Just found this!


Now I know the writer is full of crap!

"The NRO and NSA are funded through the Defense Department and report directly to the secretary of Defense."

And this from the 'Democratic Leadership Council' no less.

http://www.dlc.org/ndol_ci.cfm?kaid=124&subid=900019&contentid=3929

[FreedomCalls]

"one might object that the Congressional power to write rules and regulations for the armed forces does not apply to the NSA, because the NSA is a civilian rather than a military agency"

That's such a huge misstatement that it calls into question all the other conclusions in the article. The NSA is a DoD agency, subordinate to the Department of Defense and takes its orders from the Secretary of Defense. It is headed by a uniformed military officer.