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Harvard Law Profs Sound Off on FISA

The Harvard Crimson is reporting today that “A group of prominent law professors—including two from Harvard Law School (HLS)—wrote a letter earlier this week to Congressional leaders in which they rebutted the Bush Administration’s legal case for permitting spying on American citizens.” Among the profs are famous lefty constitutional theorist Larry Tribe and Philip Heymann, a former Clinton Administration official.

The professors actually have a pretty decent case with regard to the Administration’s “authorization to use military force” (AUMF) and FISA claims. As they say, the specific provisions of FISA should probably trump the general language of AUMF. Their fourth amendment case, however, is far weaker (and more politically motivated). According to the article, “The professors added that while it may be permissible for the president to use his authority as commander-in-chief to act ‘in the absence of Congressional action,’ he cannot act contrary to the law when Congress has enacted a specific statute to address the issue.”

This is nonsense. Even if we accept judicial supremacy (the idea that the judiciary has the final say on the Constitution) – a controversial institution overall – there is nothing to suggest that the legislature should be able to bind the president any more than the president can bind the legislature. To say that the president has the duty to listen to Congress when Congress seeks to limit his Constitutional power is ridiculous. The FISA issue is really about different constitutional interpretations by different branches. The interplay between institutional interpretations is exactly what the founders desired when they created a system of checks and balances. More on the problem of judicial supremacy (and the founders’ system of checks and balances) soon.

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