The President’s Inherent Authority Argument

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1 Response

  1. MJ says:

    Marty Lederman is unbelievable. Here’s what he leaves out of the “dicta” and “throwaway line” in In re Sealed Case:

    “The Truong court, AS DID ALL THE OTHER COURTS TO HAVE DECIDED THIS ISSUE, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

    In re Sealed Case, 310 F.3d 717, 742 (Foreign Int. Surv. Ct. Rev. 2002) (per curiam)

    Also, in case the good professor doesn’t under stand what PER CURIAM means – it means “by the court” – not “almost certainly written by Judge Laurence Silberman.” That’s just a pathetic smear cloaked in legal analysis by someone who should know better. The entire FISA court opined – just like every other federal court of appeal (four of them to be exact) to consider the issue – that the President DOES have inherent power under Article II that FISA cannot encroach upon.

    Any first-year law student would fail their exam by making such a feeble analysis: omitting the portion of the sentence that they didn’t like and then ascribing a Per Curiam holding as the opinion of only one judge.

    His analysis is typical of the left: The Constitution means what they want it to mean: The cases only say what they want them to say: If the cases don’t say what they want them to say then they should be ignored – especially if they are not written by the right(correct)minded judges.

    Unimpressive, at best.