[dirtboy]

So does that mean the Posse Comitatus Act is also unconstitutional? That regulates the power of the executive.

Congress does have the power to declare war, so under the Constitution they do have a say about how the military is used.

[inquest]

Well, the President's only power when it comes to surveillance is that he's commander-in-chief of the military. Absent that, where does his power come from here?