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The authorization of force argument is so bogus it makes my head hurt. FISA says that there can be warrantless wiretaps for 15 days after a decleration of war. Then there is the functional equivalent of a decleration of war (certainly it was not MORE than a decleration of war), and suddenly Bush can do as many warrantless wiretaps as he wants? That, my friends, is terrible logic. Will is exactly right that this is the same kind of logic liberals use in constitutional interpritation/manipulation. As for the Article II power argument- its not as frivolous, but ultimately fails- especially since, given the previous FISA analysis, we are in a lowest-ebb situation.The bottom line of this that SOME conservatives want more presidential power and are using "creative" reading of statutes and the constitution to get that. Just like liberals who want more federal power read the commerce clause. Will showed himself to be above that- and McCarthy's cheapshots show that he is not.
Originalism says that the Supreme Court can be wrong, so stare decisis has only non-binding effect on constitutional questions.The composition of the federal bench is what it is.This drifting consensus of judicial opinion is: 1) the only fair way to "say what the law is"; or 2) a constant threat to correct interpretation of the text of the constitution."lowest ebb" is a constitutional doctrine from one, very eminent justice.The president of today can believe (as they are wont to believe) that Art II accords them considerable power. Sooner or later, any president must submit to the courts to test his always-expansive view of presidential powers. In the meantime, he will attempt to place judges on the federal bench that will understand his powers as he does.Where does this leave us?Time will tell.
I only cited that Supreme Court doctrine because I believe it is generally correct. There is a big gap between what the constitutional requires (operational rules) and what the Courts do in judicial review (decision rules). No matter whether the Court will or should overturn Bush's actions- they are still in violation of the Constitution (operational rule).As for Bush's appointment power- that can change the decisional rule and constitutional law, but it cannot change the Constitution. So whether he wins does not determine if he is right.
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