FISA and Inherent Presidential Authority

There has been much discussion ever since Bush's warrantless spying was revealed whether FISA unconstitutionally infringes on the President's "inherent authority" to make warrantless wiretaps to gather foreign intelligence. This issue has never been raised in court. Before FISA was passed, federal appellate courts uniformly agreed that the President has the "inherent authority" to engage in warrentless wiretapping in matters of foreign intelligence. The Supreme Court has never addressed the issue and, indeed, expressly declined to determine whether a warrant was required to wiretap in cases of foreign intelligence. However, by declining to review any appellate court decisions, the Supreme Court implicitly endorsed them.

But it does not logically follow that FISA unconstitutionally infringes on the President's inherent authority. "Inherent authority" is an ambiguous phrase with two meanings best described by Walter Dellinger:

One meaning would refer to what the president has authority to do on his own in the fields of national security and armed conflict when Congress has not acted. That should be a very broad area. The term "inherent presidential power" could
also be taken, however, to refer to matters so deeply at the core of presidential authority that any act of Congress that regulated or limited the exercise of that power would be unconstitutional—even if Congress was acting under legislative powers clearly conferred by the Constitution. That should be an exceedingly small set of matters.

This administration has taken the astounding position that if the president has "inherent authority" to do and act whenever Congress is silent, then it follows that any act of Congress that regulates such an authority is an invalid impingement on his "inherent power."

In other words, pre-FISA rulings that the President has "inherent authority" to wiretap without a warrant for foreign intelligence could mean that since (a) the President has inherent constitutional authority to take necessary actions to gather foreign intelligence and (b) the Fourth Amendment does not impose any constitutional requirement for a warrant in such cases, the President may engage in foreign intelligence wiretapping without a warrant unless Congress acts to restrain him. Or it may mean that the President's authority to gather foreign intelligence is so absolute that Congress may not impose any restraints or regulations on it. No post-FISA court ruling has clarified the issue, because no one has ever challenged FISA in court as an unconstitutional infringement on executive power.

However, there are a few pre-FISA cases on the limits of the President's authority to wiretap for intelligence purposes as opposed to criminal prosecution, and several post-FISA cases in which defendants challenge the law on Fourth Amendment and other grounds. And there is one (only one) government appeal of restrictions placed by the FISA court. I have read these cases over from the perspective of an enlightened lay person who has some legal training, but is not a lawyer, let alone a constitutional scholar. My next posts will address what these cases say.