Congress Has the Power to Enforce the Bill of Rights Against the Federal Government; Therefore FISA is Constitutional and the President's Terrorist Surveillance Program is Illegal

Abstract

The principal point of this article is that Congress has plenary authority to enforce the Bill of Rights against the federal government. Although this precept is a fundamental one, neither the Supreme Court nor legal scholars have articulated this point in clear, simple, and direct terms. The Supreme Court does not have a monopoly on the Bill of Rights. Congress, too, has constitutional authority to interpret our rights, and to enforce or enlarge them as against the actions of the federal government. Congress exercised its power to protect the constitutional rights of American citizens when it enacted FISA, the federal law that requires the government to obtain a warrant from a special court before engaging in electronic eavesdropping for the purpose of obtaining foreign intelligence. In spite of this law, the National Security Agency has conducted a program of warrantless surveillance, called the Terrorist Surveillance Program. The Attorney General has made a nuanced and unique argument in support of the Terrorist Surveillance Program. He suggests that wiretapping for foreign intelligence is more central to the role of the President than it is to the role of Congress, and that therefore FISA, the federal statute which requires the President to obtain warrants, is unconstitutional. In response to this argument, the article contends that Congress has the power to enforce the Bill of Rights against the federal government, and that FISA therefore does represent an exercise by Congress of one of its core functions - to protect the rights of American citizens. Finally, the Attorney General also argues that FISA is unconstitutional under a broad reading of executive power called the theory of the "unitary executive." This article contends that this theory was rejected by Supreme Court in the case of Youngstown Sheet & Tube v. Sawyer. Justice Jackson, in particular, eloquently argued that the President is subject to the Rule of Law. This article also suggests that the opinion of Anthony Kennedy in Clinton v. New York is relevant. In that case Justice Kennedy made "individual liberty" the centerpiece of Separation of Powers analysis. The article concludes that both the Rule of Law and individual liberty are served by upholding the constitutionality of FISA.

Keywords: Constitutional Law, Separation of Powers, Fourth Amendment, Eavesdropping, Wiretapping

JEL Classification: K10, K30