George Bush, however…
The Justice Department released its official explanation of why Bush gets to ignore FISA today.
On the first page, it explains that the president acts in his "inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs."
If we head to old Article 2, we find, sure enough, constitutionally, he is Commander in Chief.
But to get there, we have to flip past Congress's power to declare war (surely an act of foreign affairs), but also to "make rules regarding captures on land and water," which is as close as we get to the issue at hand here. You may also recall that Congress can ratify or reject treaties (also pertinent to foreign affairs), as well as "make rules for the government and regulation of the land and naval forces," meaning that the president is not the only power that can regulate military matters.
This sets us on a poor footing, and we haven't even gotten past the trite opening pleasantries.
And honestly, beyond that you get the executive saying it has all power it wants and that Congress authorized this program without knowing about it. There, 40 pages you didn't have to read.
These are claims that the CRS already addressed in its thorough and non-partisan way, and rejected.
Does this leave us with "he said, she said"? Maybe, for those of us who aren't constitutional scholars, or aren't employed by one branch or the other. But we can use a little intuition. What would Hamilton do? What would Madison do? What about George Washington? How about Ben Franklin (happy belated 300th!).
These men lived in tumultuous times. The young United States was constantly on the verge of tearing itself apart, and it was surrounded by powers ready to drive that wedge deep and scoop the fragments back into a repressive empire. The Indian wars on the border were the asymmetric warfare of the day, the 17th century equivalent of the sort of warfare going on in Afghanistan or Iraq.
Franklin famously said "We must hang together…else we shall most assuredly hang separately." Government branches don't get to act as sole organs independent of the others, any more than the men who founded the nation could act alone.
George Washington was offered a chance to be the sole organ of foreign affairs via a coup, and he refused. Alexander Hamilton and James Madison crafted a Constitution which balances power between the branches because they didn't want to make anyone the sole organ of anything. And George Washington stood by it.
And that ends the conversation.
“One By One” by Billy Bragg & Wilco from the album Mermaid Avenue (1998, 3:25).