In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.
In United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004) a prosecution in which production of enemy combatant witnesses had been refused by the government and the doctrine of Separation of Powers raised, the court, citing Mistretta v. United States, 488 U.S. 361 (1989), noted that it:
- "[C]onsistently has given voice to, and has reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty." United States v. Moussaoui, 365 F.3d at 305 citing Mistretta v. United States, 488 U.S. 361 (1989), 380
Finally, in the case of Clinton v. Jones, 520 U.S. 681 (1997), the separation of powers doctrine is again discussed and, again, some overlap of the authorities of two branches is permitted. In that case, although Article III jurisdiction of the federal courts is found intrusive and burdensome to the Chief Executive it did not follow, the court held, that separation of powers principles would be violated by allowing a lawsuit against the Chief Executive to proceed. Id. at 701. Mere burdensomeness or inconvenience did not rise to the level of superceding the doctrine of separation of powers. Id. at 703.
In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated. The President, undisputedly, has violated the provisions of FISA for a five-year period. Justice Black wrote, in Youngstown:
- Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. [*37]
