Friday, September 29, 2006

How can federal law overstep the Constitution?

The House of Representatives passed H.R.5825 earlier today, 232-191, with 160 of the "nay" votes coming from Democrats. It more or less permits the executive branch to conduct certain wiretaps without warrants, prompting me to ask rhetorically, "How can Congress pass a law that supercedes the Constitution?" Then I answered myself, "Easily! What do you think they do almost all the time but do exactly that?"

Peek at the House's daily digest, and ask yourself how many of those violate the Constitution, ignoring the Constitution's clear restrictions on government. For example, on Wednesday, the Senate passed "S.1848, to promote remediation of inactive and abandoned mines, with an amendment in the nature of a substitute." How many millions will be wasted there, taken from those who produce to those who use government to gain jobs?
Under the measure, the president would be authorized to conduct such wiretaps if he:

• Notifies the House and Senate intelligence committees and congressional leaders.

• Believes an attack is imminent and later explains the reason and names the individuals and groups involved.

• Renews his certification every 90 days.
It's giving carte blanche to the president by letting him surveil who'd he like, with only the stipulation that he tell certain members of Congress. Effectively, they're giving the executive branch a universal warrant, but I fail to find in any part of American legal tradition where members of the legislative branch are given the power to issue warrants (which are simply permission for the government) to search and seize people, their property and their effects. Maybe I'm just a silly originalist and all, but I thought warrants were issued by members of the judiciary. Well, the ACLU and others will undoubtedly sue. If the law is struck down (depending on the circuit court), it would be for that reason: Congress is giving up authority it doesn't have in the first place.

And if an attack is imminent, and the evidence is sufficient to justify wiretapping someone, why not procure a warrant from the FISA court? Why circumvent that court, when it's known for giving lots of easy warrants and so far has never denied one, and when it can give retroactive warrants seventy-two hours after the surveillance begins? Are three full days not enough for the executive branch to explain things to a judge?

Now, are the Republicans engaging in mere election year tactics? You bet, but let's not forget the Democrats are just as bad in pandering to the electorate. And in fact, the Democrats are hypocrites: Bill Clinton did the same warrantless searches during his presidency. It took a Republican-controlled Congress -- though doing no more than playing politics -- to force Clinton to start getting warrants from FISA. It doesn't matter which party is in power, proving what Jefferson said that "The natural progress of things is for liberty to yield and government to gain ground."

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