OK, it may take a bit to set the groundwork for this one, so bear with me.
First, what do we often call “The Law of the Land?” That is our Constitution. That is the rule book under which we as a nation operate. (Or should operate, but that’s another story.) Could the President announce that he doesn’t need the advice and consent of the Senate to appoint judges to the Supreme Court? Well, he could, but doing so would be unconstitutional because Article 2, Section 2 of the Constitution says he must, and you can’t change the Constitution without an amendment, treaty, or constitutional convention.
Could Congress tell the Supreme Court that it does not have the power of judicial review? While it’s true that judicial review is not explicitly stated in the Constitution, it has been recognized as an implied right and responsibility of the Supreme Court. Restricting the Supreme Court from exercising judicial review would be changing the court’s acknowledged constitutional powers, and you can’t do that without an amendment, treaty, or constitutional convention.
Are we on the same page now? Good. It’s time to look at something akin to judicial review, in that it is not expressly stated in the Constitution but has been recognized as a right and responsibility of the President. The Omnibus Crime Control and Safe Streets Act of 1968 states that nothing contained in it or the earlier 1934 Communications Act
shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything … be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.”
Having previously recognized this existing Presidential right in 1968, Congress essentially yelled, “Hey! Look over there!” while it drafted the 1978 law establishing the Foreign Intelligence Surveillance Act, commonly known as FISA. By passing the 1978 law, Congress took away a right and responsibility of the President that it had recognized only ten years before. And you can’t do that without an amendment, treaty, or constitutional convention.
So this whole brouhaha about wiretapping al-Qaeda members who make calls to the U.S. or the gathering of call data is not a horrendous invasion of people’s privacy. It is the President exercising his responsibility to “protect the Nation against actual or potential attack or other hostile acts of a foreign power.” But don’t expect to hear many Democrats acknowledge that.