http://www.constitution.org/sech/sech_094.htm
(Section B).

As appears from the above link, the Head of State in that case had also been claiming that he ‘needs no legislative authorization for what has been done [collecting the tax], and in fact remains entirely free to continue as he has even if [Parliament] were to try to impose a curb.’ Also that ‘The Constitution confides in the [King] the authority, independent of any statute, to determine when a ‘national emergency’ caused by an attack on [Great Britain] exists.’ The Court accepted the royal arguments – this was before the Judges were granted tenure ‘during good behaviour’. To quote them ‘In such case your majesty is the sole judge both of the danger and when and how the same is to be prevented and avoided.’ Sound familiar?

The issue is considered in more detail in the test case of Rex v Hampden (1638) (Section C in that link).

Of course these judgments were overturned by the Ship Money Act 1640.
http://www.constitution.org/sech/sech_096.htm
Section G.

And the principle that the King is under law was finally settled by the Glorious Revolution and the (English) Bill of Rights and (Scottish) Claim of Right (1689).

…’amsiegel’ correctly notes that the basics of the 4th Amendment are lost (…ignored ?) in most discussions/analysis of this domestic spying issue.

The 4th Amendment legally controls ALL government searches within the sovereign United States.

There are NO exceptions for ‘national-security, ‘war’ or ‘border-searches’. Neither Congress, President, nor Supreme Court may ‘legally’ override/modify the 4th Amendment — although they have all repeatedly done so.

Judicial warrants are required for ALL federal searches; there is zero Constitutional authority for secret courts or retroactive search-warrants.

The political principle clearly embodied in the 4th Amendment, as ’supreme-law-of-the-land’ is that… the people of the U.S. have the ‘right’ for their persons & property to be secure against searches & seizures by government agents — unless ’specific’ probable-cause of wrongdoing can be demonstrated to judicial agents against ’specific’ persons/places.

‘General’ searches are totally illegal… even if done for purposes of general law-enforcement or national-security.

Of course, the 4th Amendment places a significant restriction on government actions — and that was its purpose; an over-powering domestic government was feared ‘much’ more than ordinary criminals or foreign threats (…and rightly so!).

———–

The “inherent” authority of the President to conduct foreign surveillance does not, in my view, survive FISA in any other than a residual capacity, should FISA be repealed, for instance, or in circumstances not covered by FISA. To be clear, FISA clearly covers the precise circumstances in which the Bush administration has secretly conducted (and continue to conduct, presumably) its electronic eavesdropping. For exigent circumstances, one of the FISA provisions permits immediate wiretap subject to post hoc FISA-court review within 72 hours. Moreover, neither FISA nor the Constitution grant the executive authority to conduct wiretapping that is unreviewable by any co-equal branch of government.

In my view, FISA plainly circumscribes presidential authority, notwithstanding the “encroachment” dicta in the FISA Appeals Court 2002 decision. This legislation was signed into law by two presidents in 1978 and 1995. Indeed, the very purpose of FISA was for the two political branches, each with its own constitutional authority in this arena, to create a procedural structure for foreign surveillance. (By the way, Gorelick’s 1994 statement acknowledges the authority of Congress to so legislate.)

However, even if the “inherent” authority of the President to conduct foreign surveillance is more than dormant post-FISA, “inherent” authority is not the authority claimed by the Bush administration: it is not absolute authority; it is not unchecked authority; and it is not unreviewable authority. And the presidential oath of office is hardly an adequate substitute: kings take oaths, too.

The so-called “inherent” authority of the President was subject to judicial review even before FISA was enacted, and, surely, FISA did not expand the power of the presidency. FISA did not make the executive the sole arbiter of foreign surveillance activities — unchecked and unreviewed. That power was never vested in the United States presidency, either before or after FISA. Yet, that is precisely the power that the Bush administration arrogates to itself.

I don’t think the Administration’s argument holds any water here, unless they are perpetually extending the grace periods within the constructs of the FISA.

One key Fourth Amendment question is whether interception of a US-foreign phone call or email is a “border search.” If you physically travel to or from another country, you subject yourself to more intrusive searches on less suspicion than would be allowed domestically. Does the same hold true when you send your voice or data overseas? It’s an unresolved question.

However, Youngstown give us some denial of sweeping war powers and strengthens the role of Congress.

Yet, it seems that the fall back argument of the AUMF reads as if Congress has sacrificed it’s right to check the power of the executive in the phrasing that the president has the power to take action against anyone “he determines” poses a threat.

To further complicate matters, it would seem as if the definition of “terrorist” would come into play here. The power to put the nation to war, and thereby claiming war powers as the Commander in Chief, qualifies terrorist groups as near-soveriegn groups, and not simply militants employing a tactic. If you deem al-Qaeda as a state-like group, could one then declare war on, say, civil disobedience? The nation did not go to war against the mafia, why al Qaeda?

It seems that on one hand, the AUMF is a stretch, but at the same time strengthens the argument that the president indeed has such power because A) the AUMF says he does and B) Congress never said he doesn’t.