Senator Specter has an op-ed in the Washington Post in which he responds to critics of his proposed legislation concerning the NSA domestic surveillance program. Here is an excerpt:

  The president has insisted that he was acting lawfully within his constitutional responsibilities. On its face, the program seems contrary to the plain text of the 1978 Foreign Intelligence Surveillance Act (FISA), which regulates domestic national security wiretapping. The president argues, however, that his inherent constitutional powers supersede the statute. Without knowing the exact contours of the program, it's impossible to say whether he is right or wrong. But three federal appeals court decisions suggest the president may be right.
  The integrity of our nation's adherence to the rule of law requires an answer to the question of whether this program is legal. The protection of our nation's security and individual rights requires a modification of the program if it is not lawful as currently fashioned. The challenge, which I have been trying to meet legislatively, is to structure a procedure under which the courts can adjudicate the lawfulness of this highly sensitive program while maintaining the secrecy the president contends is so important.
  My bill, the result of months of negotiation with the administration, accomplishes this goal by authorizing consideration of the program by the Foreign Intelligence Surveillance Court (FISC), the court created under FISA to consider warrant applications. The FISC has the expertise to handle this question. Its closed proceedings and unblemished record for not leaking would make full consideration both possible and secure. Not only would the bill permit a determination of the program's legality but if it were found unlawful in whole or in part, a framework would exist for modifying the program.
  Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.

  I have a tremendous amount of respect for Senator Specter. I think his efforts to hammer out a compromise over the NSA program are very admirable. I don't have a clear view of whether his legislation is a good idea or a bad idea, but I'm certainly open to it. (My own take is that it's hard to take a position on Specter's bill without knowing the details of the classified program, which of course we don't know, but that's a topic for another post.) At the same time, I believe Senator Specter is making two errors here that are important to understand.

  First, Senator Specter appears to discuss the lawfulness of a program as if that were the same as the program's constitutionality. The two are different, however, as the legal dispute over the NSA wiretapping program has focused mostly on whether it violates statutory Foreign Intelligence Surveillance Act (FISA). Specter's bill would change the Foreign Intelligence Surveillance Act to remove the basis for believing the program violates FISA, and would then ask the FISA court to determine only if the program violates the Constitution. As a result, Specter's legislation would not answer whether the NSA program is lawful; rather, it would answer whether the NSA program could be made lawful. That would settle one part of the debate, but would preclude resolution of the other part.

  Second, I think Senator Specter is mixing two questions when he writes that "[t]he president's constitutional power either exists or does not exist, no matter what any statute may say." There are actually two distinct questions here: The president's constitutional power to act without Congress's explicit approval, and the president's constitutional power to act in the face of Congress's explicit disapproval. The two are not the same.

  To see the importance of the difference, consider an example from wiretapping law. In 1968, Congress passed the federal Wiretap Act, which for the first time permitted federal agents to use bugging equipment to monitor private homes pursuant to a court order. But Congress's legislation left out something important: The legislation said nothing about the authority of investigators to covertly enter the home to install the bug. As a result, Courts had to decide whether Congress had implicitly authorized investigators to break into homes covertly to install the bug pursuant to a court order, or absent that, whether the Executive Branch had "inherent authority" to break into the home to install the bug.

  Here is how the Sixth Circuit presented the latter question:

Given the 1968 statute which permits eavesdropping, is it "reasonable" under the Fourth Amendment for officers to break and enter someone's house or office in order to execute an eavesdrop order? Do law enforcement agents have an independent or inherent authority sanctioned by the Fourth Amendment to break and enter to execute a search warrant, a power that may be extended by analogy to the execution of an eavesdropping warrant?

United States v. Finazzo, 583 F.2d 837 (6th Cir. 1978) (Merritt, J.). The Sixth Circuit concluded that the Executive Branch did not have this inherent authority and therefore could not act without Congress's approval:

In the absence of explicit statutory authorization, we are unwilling to create a wholly new exception to general search and seizure principles which have held for centuries that such conduct is illegal.

Id. The Supreme Court decided the case a year later, and ruled that Congress had implicitly authorized the covert entries as a matter of statutory law. See Dalia v. United States, 441 U.S. 238 (1979). But the key here is that when the Sixth Circuit was making repeated references to the "inherent authority" of the Executive Branch, that clearly meant "authority to act absent Congressional approval," not "authority to act in the face of a Congressional prohibition." The answer to the question of whether the searches were authorized hinged on whether Congress had acted; "inherent authority" was ultimately second to the question of Congressional action. Thus, in Dalia, the fact that the Supreme Court concluded that Congress had authorized the covert entry resolved the matter of Executive Authority.

  Coming back to Senator Specter's claim that "[t]he president's constitutional power either exists or does not exist, no matter what any statute may say," my sense is that he seems to be slipping past the key question. Of course, Congress cannot trump the President's "inherent authority" when that inherent authority is used to refer to the authority to act in the face of Congressional prohibition. And indeed, there are some cases in which courts have referred to inherent authority in this way. However, Congress can trump the President's "inherent authority" when that inherent authority is only the inherent authority to act absent Congressional regulation. My sense is that most legal analysts interpret the court of appeals cases Specter cites to refer to the latter kind of inherent authority rather than the former kind.

  Now, of course, none of this touches on the merits of Senator Specter's bill. But to the extent that his bill reflects the same assumptions in the Senator's op-ed, I think it's helpful to understand why Senator Specter's understanding is different from that of most legal analysts in this area.

  That's my sense of it, at least. If I'm mistaken, I look forward to your comments to help set the record straight. As always, civil and respectful comments only.

  (cross-posted at OrinKerr.com)