Richard Epstein weighs in on the wiretap issue on the Op-Ed page of the Wall Street Journal with Executive Power on Steroids. While claiming to be for legal wiretaps, he is strongly against illegal ones:

The major danger with presidential surveillance does not lie in this particular overreaching of executive power. It's what comes next. If President Bush can ignore FISA, then he can disregard a congressional prohibition against the use of nuclear force.

Perhaps too melodramatic to be convincing. When I did Oxford debate in high school, every plan from water quality to farm policy ended with nuclear war. But there are myriad ways that presidential powers could become tyrannical if a Jacksonian president took the law into his own hands. I may not like Jackson as chief magistrate, but he sure knew how to give a good speech.

Just what is with you Americans and steroid abuse?

this isnt overly melodramatic in the slightest. alberto gonzales has put forth 2 justifications for the warrantless domestic surveillance. 1) fisa states that you dont need a warrant if other statutes permit it, and gonzales feels that the AUMF is general enough to permit it (which is rediculous). and if that doesnt hold up, 2) they have the constitutional authority to do whatever the hell they want. it truly is a matter of if the president has this power, and he has the power to do everything he did to jose padilla, then what power doesnt he have?

"what power doesnt he have?"

I agree, but how do you get people made about it until he uses some of them? Saying he'll start a nuclear war is over the top.

What is it with people these days?

It seems no one can spell ridiculous correctly anymore. There is no 'e' in there.

And since when does Congress possess the power of preventing the CinC from using our nuclear forces?

"And since when does Congress possess the power of preventing the CinC from using our nuclear forces?"

It doen't. That falls squarely within his authority as commander-in-chief.

"And since when does Congress possess the power of preventing the CinC from using our nuclear forces?"

It dosen't. That falls squarely within his authority as commander-in-chief.

Epstein says this about power to use nukes:

Most critically for the spying dispute, Congress has the explicit power "to make rules for the government and regulation of the land and naval forces."

"Congress has the explicit power "to make rules for the government and regulation of the land and naval forces."

That is the constutional language that describes what we would refer to as funding, arming, defining ranks and orders of battle.

The President is the one who pushes the little red button, the Congress dictates its shape and pays for it.

If congress wants to bar use of nucler force by the executive, passing a law barring it would most likely be unconstutional.

De-funding all nuclear weapons programs would be quite constutional.

This is the difference between the powers reserved for the executive and those reserved for congress within the constution.