There are some recent blog posts and news stories worth reading about the NSA surveillance scandal.
Orin Kerr at the VC has a new post examining the argument that Article II of the Constitution grants the President the “inherent authority” to conduct warrantless surveillance in violation of the Foreign Intelligence Surveillance Act. He concludes:
I don’t think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it’s really hard to see where the Administration could get 5 votes for the claim. That’s my ballpark guess, at least.
In particular, Kerr examines nine words in an opinion by the FISA Court of Review, In re Sealed Case, that many cite as support for the Article II argument. Kerr observes: