twodfin said about spying: "The President has no obligation to obey laws that impinge on his Constitutional authority." Congress passed FISA to restrain president Nixon's abuses. The statement that the president can ignore those laws doesn't make sense unless you believe the President can not be restrained because he is using his "commander in chief" powers in a war time situation.

You repeated the same idea, again with regard to spying: "Congress cannot in fact pass laws that alter the balance of powers erected in the Constitution."

Maybe you guys aren't coming up with these assertions based on John Yoo's theories, if so I apologize for lumping you together, but it sounds like the same ideas to me: that congress can't restrain the president at this point because we're at war. If it's another legal theory let me know.

> Just stop digging.

What is it about my comments that is so beyond the pale to you?

Whether we're at war or not has nothing to do with it (except insofar as you take the Bush Administration's argument that AUMF implicitly granted wide-ranging foreign espionage authorization under FISA). As tptacek pointed out, my argument is fairly banal and should be uncontroversial: If a law can be interpreted in any way that avoids usurping Executive authority, the Executive can and should interpret it that way. This is not dissimilar from the Judiciary's general practice to read Congressional statutes as constitutional if there's any such plausible reading.

If Congress passed (over a veto) a law tomorrow requiring the President to fire his Secretary of State, that law would be unconstitutional. The President wouldn't need to wait for the Supreme Court to overturn it, he could simply refuse to obey it, and he would be right. That has nothing to do with John Yoo or whether or not we're at war.

(A similar issue actually came up during Reconstruction: The Tenure of Office Act was unconstitutional, and Johnson was right to violate it, though it got him impeached.)

You weren't making a generic separation of powers argument, you were referring to the specific case of spying laws: "How much permission from Congress (and oversight by Congress) does the President need to authorize varying degrees of spying?"

I say he needs all permission in the world if congress tells him he can't do it. You seem to know of some constitutional spying power that would allow him to ignore congress. Please inform me what this constitutional clause is.

He's not saying anything like that. You keep doing this: someone makes a technical point about how the Constitution works, and you ask them why they haven't stopped beating their wife yet. Could you please engage with the actual issue?

Again: what do you think happens if Congress passes a bill requiring the President to fire his Secretary of State?

I'm really at a loss, I don't understand why we keep talking past each other. I'm willing to accept that I'm misunderstanding something here but I don't see it.

Yes, congress cannot impinge on the President's constitutional powers, can't force him to fire his Secretary of State. But spying is not a constitutional power, unless you accept the AUMF war-time Commander in Chief argument. Which is what set off my John Yoo detector.

Huh? Where in the Constitution is Congress given authority over "spying"? At all times, not just when authorized to use military force, the executive branch controls the military and governs foreign affairs. Your comment makes no sense.

Congress makes laws that cover the military, its all checked and balanced. There is no special exempt presidential power defined.