Secondly, the program is still up and running, but no longer is it a Executive program. It is now under the control of the courts oversight and is no longer warrentless..
the program is up and running, only to the degree that someone is willing to pursue warrants through FISA. and when they don't want to, the program isn't up and running, at least not with respect to the domestic criminal justice system.
and do you think the Dems are going to stop here? No, they will move now to make FISA even more restrictive, with congressional oversight perhaps. so what happens then, does the administration come back later and say "we should never have let this executive privilege go, we are re-asserting it".