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No branch of government should be above Constitution

MICHAEL ANTHONY LAWRENCE / Detroit Free Press | January 15 2006

The still-bubbling controversy about the Bush Administration's post-9/11 decision to allow secret domestic eavesdropping on American citizens brings to mind a comment made by Chief Justice John Roberts during his confirmation hearings last September. Asked if he adhered to a view of the Supreme Court as Congress' taskmaster, Roberts responded, "I don't think the court should be a taskmaster of Congress. The Constitution is the court's taskmaster, and it is Congress' as well."

Roberts' comment nicely captures the essence of this nation's system of government (one that clearly escapes the president and his handlers): It is the Constitution -- not Congress, not the executive, not even the judiciary -- that establishes the baseline conduct to which government must faithfully adhere. The Constitution is sovereign, and nothing any official in any branch of government says can change the underlying core proposition that government, in the conduct of its official duties, simply may not ignore basic constitutional guarantees -- here, of individual liberty and freedom from unreasonable governmental intrusion -- even during times of national emergency.

Think of it like this: If your neighbor tried to give away your house, you'd be legally justified to prevent this from occurring. The house simply is not the neighbor's to give away. Similarly, constitutional protections of individual liberties simply are not the president's or Congress' or the court's to give away.

There are limited circumstances in which the president and Congress may regulate, but not remove, an individual's constitutionally protected liberties, but only when the government meets a heavy burden of showing its action is no more intrusive than necessary and serves an extremely strong government interest.

Congress recognized that the Constitution would prohibit highly discretionary governmental eavesdropping, and so required in the Foreign Intelligence Surveillance Act of 1978 that the government obtain search warrants from a special secret court before conducting electronic surveillance of people suspected to be terrorists or spies.

By authorizing warrantless eavesdropping and ignoring FISA, President George W. Bush exceeded his constitutional power.

As Justice Robert Jackson put it in a case 50 years ago striking down President Harry S. Truman's government seizure of private steel mills during the Korean War, "when the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Here, Bush operated in a way incompatible with the expressed will of Congress, and his power was at its lowest ebb.

Even if Congress did somehow implicitly authorize warrantless searches in the wake of 9/11, as the president claims, this just means that Congress, in collaboration with the president, acted unconstitutionally. It is one thing to say that government may impose limitations on individual liberties if it meets the substantial burdens required in a warrant; it is another, however, to grant the executive branch unfettered discretion to spy on citizens free of any judicial oversight whatsoever. Moreover, it is no more acceptable for two branches of government acting in cooperation to violate the Constitution than it would be for one to do so acting alone.

In short, the Constitution is a taskmaster -- a stern one, indeed. If we've learned anything from 217 years of experience, it's that government frequently overreaches, and the Constitution brings the government back into line.

So it shall be here as well. Any other result, allowing expansion of an all-powerful government at the expense of individual liberty, would itself amount to a victory for the terrorists.

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