Necessary and Proper Clause

Here is the U. S. Department of Justice's letter about the President authorizing the NSA warrantless wiretaps to members of congress.

The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. The AUMF authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001, ... in order to prevent any future acts of international terrorism against the United States." § 2(a). The AUMF clearly contemplates action within the United States, see also id. pmbl. (the attacks of September 11 "render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad"). The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some have argued. Indeed, those who directly "committed" the attacks of September 11 resided in the United States for months before those attacks. The reality of the September 11 plot demonstrates that the authorization of force covers activities both on foreign soil and in America.

Apparently, no member of DoJ has heard of the Necessary and Proper Clause.

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

The President can not disobey the law the suit his whims. Cogress decides what the executive powers through legislation. George Will explains.

Besides, terrorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs." That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers . Those powers do not include deciding that a law -- FISA, for example -- is somehow exempted from the presidential duty to "take care that the laws be faithfully executed."

The reason the White House doesn't want to go through the FISA warrant process is because they have been spying on political opponents.

Rich Lowry of the National Review wrote a comedy masterpiece on the NSA wiretaps.

The president has the authority under Article II of the Constitution to defend the United States. If he can bomb the nation's enemies overseas without a court's approval, he certainly can listen to their conversations.

Rich, Congress has to make both acts legal. There are public defenders who barely got through law school who have better legal minds. Has this man ever heard of the War Powers Resolution?