The Dems' Newfound Admiration for Checks and Balances

Funny how they didn't worry about this when Clinton initiated domestic surveillance in peacetime:

"The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency."

That sure sounds like it could have been written by John Ashcroft. Or Alberto Gonzales. Or one of the many Bush-administration officials vigorously defending the NSA's warrantless monitoring of enemy communications into and out of the homeland. After all, it succinctly states the best explanation for why President Bush was empowered to go beyond the strictures of the 1978 Foreign Intelligence Surveillance Act (FISA) and create a terrorist-surveillance program, designed to prevent a reprise of 9/11 ... or worse.

But the assertion does not come from the Bush administration at all. Nor from Fox News, Rush Limbaugh, National Review, or any of the other precincts limned by today's American Left as megaphones for the president's dreaded "domestic spying program."

No, for this clear statement of principle, we have the Clinton administration to thank. Specifically, then-Attorney General Janet Reno's Office of Legal Counsel (OLC) — the Justice Department's elite unit of lawyers for the lawyers. It was chiseled into a formal 1994 OLC opinion, aptly entitled "The President's Authority to Decline to Execute Unconstitutional Statutes," by then-Assistant Attorney General Walter Dellinger, OLC's top gun.

"Where the President believes that an enactment [by Congress] unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it," Dellinger explained. Far from a novel idea, his opinion elaborates that: "the general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable."

Evidently, sometime between 1994 and 2006, it suddenly got assailable. In January, as controversy was stoked over the NSA program's much-decried violation of FISA's purported requirement that the president of the United States ask a judge's permission to intercept enemy communications in wartime, Dellinger joined several other "scholars of constitutional law and former government officials" — including several who served in the Clinton Justice Department — in ceremoniously submitting to Congress a letter-brief castigating the Bush administration's imperial lawlessness.

The Bush Justice Department had argued that FISA, a mere statute, cannot be read to curtail the president's inherent constitutional authority to tap international communications — even those crossing U.S. lines — to protect the American people from foreign attack. In countering, Dellinger and his colleagues — eliding mention of any prior views they'd had on the subject — inveighed that the administration had "fail[ed] to identify any plausible legal theory for such surveillance."

Not even plausible? Now that's odd. Dellinger's 1994 opinion had assured the Clinton White House of an "unassailable" proposition that presidents may carry out their duties irrespective of limiting statutes — an executive prerogative bolstered by both Supreme Court authority tracing back to the Wilson administration and Justice Department guidance unaltered since 1860. And while, this January, the scholars and former government officials told Congress that presidents can ignore statutes only when their "authority is exclusive" (emphasis in original), Dellinger intimated no such thing in 1994 as he canvassed Supreme Court precedent that, unsurprisingly, announces no such rule.

I don't recall the LWM making a stink about it either. But then again, with "the first black president" in office, perhaps they thought to ask such questions would be impolite.