Prelude to Senate Investigation

In the opening to the confirmation hearings of Samuel Alito, Arlen Specter (R-PA) suggested that he is still concerned that the NSA wiretapping without warrants exceeded the authority of the Executive Branch and the powers authorized by the Congress. Specter said:

This hearing comes at a time of great national concern about the balance between civil rights and the president's national security authority. The president's constitutional powers as commander in chief to conduct electronic surveillance appear to conflict with what Congress has said in the Foreign Intelligence Surveillance Act.

This conflict involves very major considerations raised by Justice Jackson's historic concurrence in the Youngstown Steel seizure cases, where Justice Jackson wrote, quote, "When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum for it includes all that he possesses in his own right and all that Congress can delegate. When the president acts in absence of a congressional grant of authority, he can rely only upon his own independent powers. When the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb."

And as Justice Jackson noted, quote, "What is at stake is the equilibrium established in our constitutional system."

Specter seems willing to break with the apologist wing of his party, who desire continued power so long that they are willing to go along with the degradation of the separation of powers. Hopefully, the hearings Sen. Specter promised when the NSA's illegal surveillance (authorized repeatedly by Bush) will go ahead after the Alito hearings and he will not bow to the apologist wing of the Republican Party who seem to favor a rubber-stamp Congress.