All Intensive Purposes

As we all know now, Congress enacted FISA in the 1970s to constrain the Executive Branch. FISA arguably makes domestic wiretapping without a warrant illegal under all but limited circumstances. The Executive Branch nows takes the position that Congress lacks the power to tell the President that he cannot tap (certain) wires.

Marty Lederman asks:

So the battle lines are drawn. What's the next move for those, especially in Congress, who think the NSA program is unlawful? ... Even if Congress kicks and screams during next month's hearings -- even if it passes another statute saying "FISA -- WE MEAN IT!" -- the President will continue with business as usual.

Looking foremost to Youngstown Steel, some people have been considering how the courts might get to the claim that FISA is unconstitutional, at least as applied to what the NSA has been doing. But as Lederman implies, waiting for the courts to resolve a dispute between the Executive and Legislative Branches does not seem like a good thing. (Not least, it seems to me that as the stakes of the dispute increase, the pressure on the courts mounts to declare the issue a political question, and thereby to leave it to the other two branches to resolve.)

So what about the Spending Power? Article I, Section 9, of the Constitution provides: " No money shall be drawn from the treasury, but in consequence of appropriations made by law." In recent years, Congress has given considerable latitude to the Executive Branch in appropriating funds -- the proverbial blank check. But this was a choice. A Congress with the willing to stand on the plain language of FISA's terms could up the ante by appropriating money to the NSA only subject to the proviso that it not be spent on activities inconsistent with FISA's terms.

The advantage of this approach is that it recasts Congress's role in the dispute as active rather than passive. It takes the emphasis away from Congress's decision in the 1970s to block executive actions, and shifts it to Congress's essential role under Article I to decide how public funds are spent. Surely this is more favorable terrain for a battle over the scope of Article II powers. I confess that I'm not particularly familiar with the arguments made lately by the likes of John Yoo for expansive readings of the President's powers under Article II, but I have a hard time imagining a court ruling that if the President asserts a national security interest then he is entitled to redirect funds over the express will of Congress as set forth when the funds were appropriated.

Although this Republican Congress has not been inclined to pick fights with President Bush over the assertion of broad executive powers, this is the sort of congressional power -- limiting spending -- that true conservatives should be able to get behind. Consider this 2004 statement from the website of Rep. John Hostetter (R. - Ind.), asserting congressional power vis-a-vis the Judiciary:

The second constitutional power denied the courts is the legislative spending power granted exclusively to Congress in Article 1, section 9. Simply put, if Congress does not fund a thing, that thing does not happen.

So if a federal court opines that the Constitution grants homosexuals the right to have their Massachusetts’ marriage license recognized in Indiana, Congress can simply deny the funds to enforce that decision. The House did this very thing last year when it overwhelmingly passed amendments I offered denying funds to enforce court decisions banning the Pledge of Allegiance and the public depiction of the Ten Commandments.

"Simply put, if Congress does not fund a thing, that thing does not happen."

A few weeks ago, I thought the best possible resolution would be if a few Republican Senators with some gravitas persuaded the White House to back away from the constitutional confrontation and seek legislative authorization to continue the NSA's activities in some form. The New York Times' recent story questioning the program's efficacy led me to hope that the Administration would be willing to deal. With the President and the Vice President publicly digging in of late, this has seemed less likely. But if Republican elders are making their way from Capitol Hill to the White House to seek some sort of compromise, then perhaps the threat of action authorized by Section I, Section 9, will get them the leverage they need.