presidents, war, and *statutes*

Richard Dougherty doughr at
Mon Dec 19 21:59:31 PST 2005

A sound observation, Bob -- but doesn't that happen routinely, that courts take laws to be repealed or amended when there was no specific mention of it in the new statute (or Amendment)?  (I'm not endorsing the position, only asking.)
Richard Dougherty

---------- Original Message ----------------------------------
From: Bob Sheridan <bobsheridan at>
Date:  Mon, 19 Dec 2005 09:26:53 -0800

>"the AUMF impliedly repealed the well-wrought scheme in FISA,.."
>Odd that there can be an implied repeal without a knowing, voluntary, 
>and intentional decision to repeal, either in the text or the 
>legislative history, such as in the  case of a waiver of a 
>constitutional right in criminal court, but I suppose it could happen...
>marty.lederman at wrote:
>> Both of the Administration's arguments here are quite radical:  (i) 
>> That the AUMF impliedly repealed the well-wrought scheme in FISA, with 
>> its prohibition on warrantless eavesdropping on U.S. persons (a repeal 
>> that only the Executive knew about: neither the public, nor even the 
>> Congress that enacted the AUMF, was aware that it had performed such 
>> radical surgery on the U.S. Code); and (ii) even if the AUMF did not 
>> repeal/amend FISA, there's a Commander-in-Chief override.
>> I actually think the /former/ argument is more preposterous than the 
>> latter, although I'm sure others on the list will disagree.
>> But for now, I simply wanted to note this:  /If /the Administration is 
>> correct about the legality of its wiretaps, then the President's 
>> impassioned scolding of the Congress this morning for failing to 
>> reenact the PATRIOT Act is entirely misguided:  After all, the 
>> President /already has the authority/, under the AUMF and Article II, 
>> to do virtually everything the PATRIOT Act authorizes -- which means 
>> that the PATRIOT itself was largely superfluous in the first instance.

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