Alito, NSA, filibusters, and the nuclear option

[Scott Gerber]

Perhaps we're talking past each other.  Although I realize popular 
constitutionalists might not agree, my reading of the Constitution is 
that it's up to a court, not the president and not Congress, to decide 
what the Fourth Amendment requires.  After all, many federal laws 
passed via bicameralism and presentment are latter declared 
unconstituional by a court.  I suppose we'll have to wait until someone 
brings a Fourth Amendment claim before a court to find out who is 
correct.

It's also irrelevant, in my view, that the president claims he respects 
the Fourth Amendment.  He also claims he respects the Constitution.  
Does anyone believe him anymore?

sdg


Marty Lederman wrote:


>I agree that the Fourth Amendment question is a serious one.  Its 
answer probably depends in large part on how these databases are being 
used and stored, whose conversations are being intercepted (it's not 
only Al Qaeda, and some communications may not even involve anyone 
connected to AQ), and what protections, if any, are put in place to 
protect against misuse of the databases.
>
>However, if I understand Orin Kerr and others correctly, the Fourth 
Amendment question, while very serious, is subject to reasonable 
debate, because of the uncertainty of the "special needs" exception.  
And, more to the point, I think the Administration sincerely believes 
that this program does not violate the Fourth Amendment.  They are not 
claiming any presidential power to circumvent the Fourth Amendment.
>
>They are claiming a presidential power to ignore FISA -- and making an 
argument about AUMF authorization that is so specious that they cannot 
truly believe it is an example of the faithful execution of the law. 
>
>
>----- Original Message ----- 
>From: "Scott Gerber" <s-gerber at onu.edu>
>To: <marty.lederman at comcast.net>
>Cc: "Sanford Levinson" <SLevinson at law.utexas.edu>; 
<conlawprof at lists.ucla.edu>; <lawcourts-l at usc.edu>
>Sent: Saturday, December 24, 2005 1:29 PM
>Subject: Re: RE: Alito, NSA, filibusters, and the nuclear option
>
>
>> With all due respect to Mary Lederman, who seems to be following the 
>> domestic spying issue as closely as anyone, I think the scandal is 
>> about more than simply the President "ignor[ing] statutory commands."  
>> As I posted on the ConLawProf list, and as every constitutional lawyer 
>> well knows, even if Congress authorized the President to do this in 
>> AUMF (which I doubt), the 4th Amendment is still a bar to it.  The 
>> Constitution protects us from Presidential and congressional 
>> overreaching, not just Presidential overreaching.
>> 
>> Scott Gerber
>> Law College
>> Ohio Northern University
>> 
>> 
>> marty.lederman at comcast.net wrote [in part]:
>> 
>> I don't read Alito as arguing for "a broad endorsement of executive 
>> emergency power," and certainly not for any Executive power to ignore 
>> statutory commands, which is what the NSA scandal is about.  
>> 
>> --------------------------------------
>> 
>> Scott Gerber
>> Law College
>> Ohio Northern University
>> Ada, OH 45810
>> 419-772-2219
>> http://www.law.onu.edu/faculty/gerber/
>>

--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/