The Dellinger Myth

The right is desperate to defend Bush’s warrantless domestic surveillance program with the argument “Clinton did it too.” They’ve tried to make this case before and have failed repeatedly.

The National Review’s Andy McCarthy is giving it another go. (Michelle Malkin calls it a “must-read”) Here’s the essence of his latest effort:

As the Assistant Attorney General in the Clinton Justice Department’s Office of Legal Counsel, [Walter] Dellinger explained in a written opinion to the White House, that: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”

McCarthy argues that Dellinger’s statement “illustrates that separation-of-powers principles obligate the President to decline to enforce (i.e., to ignore) congressional statutes that encroach on or purport to limit the executive’s constitutional powers — just as [the Foreign Intelligence Surveillance Act] does.”


The reason why Dellinger said the President should refuse to enforce unconstitutional statutes is because it’s true. But that principle doesn’t help the Bush administration at all in the current debate. Here’s why:

1. The Bush administration has never argued that FISA is unconstitutional. That argument wasn’t advanced in the Justice Department’s 42-page defense of the program, Attorney General Alberto Gonzales’ press conference or President Bush’s radio address. So the idea that the President has the right to ignore an unconstitutional statute is irrelevant.

2. The Bush administration has never argued that FISA is unconstitutional because it’s a really bad argument. As a group of constitutional scholars explain in the New York Review of Books: “the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation…Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise.”

So, it’s another bogus argument. But the right will keep repeating it until it loses all credibility. Then, they’ll drop it and make up another one. Rinse and repeat.