A possible Madisonian?

[Bob Sheridan]

 From the article:

"...Senator Lindsey Graham, Republican of South Carolina, who has also 
criticized the program, said Ms. Wilson's comments were "a sign of a 
growing movement" by lawmakers to reassert the power of the legislature.

"This is sort of a Marbury v. Madison moment between the executive and 
the legislative branch," Mr. Graham said in a reference to the 1803 
Supreme Court decision in which the court granted itself the power to 
declare laws unconstitutional."

***
If it's true that this is really a Marbury Moment, doesn't it seem odd 
that the president would choose a legal battle over the power of his 
branch versus that of the legislative branch that he could, and very 
well may, lose?

If the Court told him he didn't have a blank check with regard to 
detaining enemy combatants, what made him think he had, or still has, a 
better case where the subjects of his questionable actions are U.S. 
citizens and residents, here at home, who are expressly protected by the 
Constitution?

Have you been impressed by any of the lawyering you've seen on the part 
of the administration throughout the development of this situation? As 
in really good, plausible facts and reasons backed by lucid, appealing 
argument, as opposed to flag-waving and patriotic drum-beating?

The administration position resembles a legalistic, Constitutional 
fur-ball, as far as I can understand it.

rs
sfls


Sanford Levinson wrote:
> Assume that Congress actually passes relevant legislation that, in 
> some way, however minimal, purports to limit presidential power to 
> conduct whatever surveillance he deems "necessary." Assuming that he 
> doesn't veto it, what do you predict the signing statement would say? 
> I.e., is Senator Hagel correct in his statement at the very end, or 
> are we indeed in a "constitutional moment" that will invariably 
> involve some kind of showdown with the Administration? As Matthew 
> Holden has insisted, this is as much a question of political science 
> as law: i.e., will congressional Republicans force the White House to 
> back down from its signing statement re the McCain amendment, or will 
> they ultimately write a bill that the White House will claim, 
> plausibly or not, as a blank check a la the AUMF?
> sandy
> http://www.nytimes.com/2006/02/11/politics/11wilson.html?hp&ex=1139720400&en=59377f03d7233550&ei=5094&partner=homepage 
> <http://www.nytimes.com/2006/02/11/politics/11wilson.html?hp&ex=1139720400&en=59377f03d7233550&ei=5094&partner=homepage>
> Republican Speaks Up, Leading Others to Challenge Wiretaps
> By SHERYL GAY STOLBERG 
> <http://query.nytimes.com/search/query?ppds=bylL&v1=SHERYL%20GAY%20STOLBERG&fdq=19960101&td=sysdate&sort=newest&ac=SHERYL%20GAY%20STOLBERG&inline=nyt-per>
>
> WASHINGTON, Feb. 10 — When Representative Heather A. Wilson broke 
> ranks with President Bush on Tuesday to declare her "serious concerns" 
> about domestic eavesdropping, she gave voice to what some fellow 
> Republicans were thinking, if not saying.
>
> Now they are speaking up — and growing louder.
>
> In interviews over several days, Congressional Republicans have 
> expressed growing doubts about the National Security Agency program to 
> intercept international communications inside the United States 
> without court warrants. A growing number of Republicans say the 
> program appears to violate the Foreign Intelligence Surveillance Act, 
> the 1978 law that created a court to oversee such surveillance, and 
> are calling for revamping the FISA law.
>
> Ms. Wilson and at least six other Republican lawmakers are openly 
> skeptical about Mr. Bush's assertion that he has the inherent 
> authority to order the wiretaps and that Congress gave him the power 
> to do so when it authorized him to use military force after the Sept. 
> 11, 2001, attacks.
>
> The White House, in a turnabout, briefed the full House and Senate 
> Intelligence Committee on the program this week, after Ms. Wilson, 
> chairwoman of the subcommittee that oversees the N.S.A., had called 
> for a full-scale Congressional investigation. But some Republicans say 
> that is not enough.
>
> "I don't think that's sufficient," Senator Susan Collins 
> <http://topics.nytimes.com/top/reference/timestopics/people/c/susan_collins/index.html?inline=nyt-per>, 
> Republican of Maine, said. "There is considerable concern about the 
> administration's just citing the president's inherent authority or the 
> authorization to go to war with Iraq as grounds for conducting this 
> program. It's a stretch." ...
>
> By week's end, after Ms. Wilson became the first Republican on either 
> the House or the Senate Intelligence Committees to call for a 
> Congressional inquiry, the critics had become a chorus. Senator Lisa 
> Murkowski, Republican of Alaska, said the more she learned about the 
> program, the more its "gray areas" concerned her.
>
> Mr. Specter said he would draft legislation to put the issue in the 
> hands of the intelligence surveillance court by having its judges rule 
> on the constitutionality of the program.
>
> Even Senator Orrin G. Hatch 
> <http://topics.nytimes.com/top/reference/timestopics/people/h/orrin_g_hatch/index.html?inline=nyt-per>, 
> the Utah Republican and Judiciary Committee member who has been a 
> staunch supporter of the eavesdropping, said that although he did not 
> think the law needed revising, Congress had to have more oversight.
>
> "The administration has gone a long way in the last couple of days to 
> assure people that this highly classified program is critical to the 
> protection of the nation," Mr. Hatch said. "I think they've more than 
> made a persuasive case. The real question is how do we have oversight?"
>
> In part, the backlash is a symptom of Congressional muscle flexing; a 
> sort of mutiny on Capitol Hill, where lawmakers have been frustrated 
> by the way Mr. Bush boldly exercises his executive authority.
>
> Senator Lindsey Graham, Republican of South Carolina, who has also 
> criticized the program, said Ms. Wilson's comments were "a sign of a 
> growing movement" by lawmakers to reassert the power of the legislature.
>
> "This is sort of a Marbury v. Madison moment between the executive and 
> the legislative branch," Mr. Graham said in a reference to the 1803 
> Supreme Court decision in which the court granted itself the power to 
> declare laws unconstitutional.
>
> "I think there's two things going on," said Mr. Graham, a Judiciary 
> Committee member. "There's an abandonment of you-broke-the-law 
> rhetoric by the Democrats and a more questioning attitude about what 
> the law should be by the Republicans. And that merges for a very 
> healthy debate."
>
> Senator Chuck Hagel 
> <http://topics.nytimes.com/top/reference/timestopics/people/h/chuck_hagel/index.html?inline=nyt-per>, 
> Republican of Nebraska, said: "I don't think anyone wants any kind of 
> constitutional showdown over this. We want the president to succeed, 
> but the fact is we are a coequal branch of government and we have 
> serious oversight responsibilities." ....
>
> ------------------------------------------------------------------------
>
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