George Will finds the Bush administration's legal positions in defense of the NSA surveillance program "monarchical." Andrew McCarthy, a "reverent admirer of Will," finds that Will's argument is "an embarrassing magpie of hyperbole and error." McCarthy, I think, has far the better of the argument.

Will disagrees with the administration about how much power Congress has with respect to the conduct of war. That disagreement must be resolved based on the language of the Constitution and court precedent. As McCarthy notes, Will has virtually nothing to say about either. The only judicial opinion he cites is Justice Jackson's concurrence in the steel mill seizure case. But Jackson said only that the president's power is at its weakest when Congress purports to prohibit presidential action. This does not mean that, in a given case, that power is non-existent under this circumstance. McCarthy presents a solid case, based on the language of the Constitution and precedent, that the president has the inherent constitutional power to conduct the warrantless surveillance at issue. There may be a plausible argument case to be made to the contrary, but Will does not make it.

The issue also arises whether, given the congressional authorization of the use of military force (AUMF), Congress has authorized the president to conduct the surveillance in question, thus taking this situation out of Jackson's "lowest ebb" category. McCarthy has the better of this argument too. For example, Will asserts that the administration's view that AUMF authorizes warrantless surveillance of enemy calls into the U.S. is at odds with the administration's view that statutes should be interpreted "strictly," in line with the plain meaning of their words. But Will does not bother to consider the words of AUMF, which authorize the administration to "use all necessary and appropriate force" to prevent another attack. The issue for a strict constructionist is whether this language plainly emcompasses penetration of enemy communications. Will doesn't explain why it wouldn't; his analysis doesn't take him this far.

It's disappointing that Will fails to transcend the standard "Bush is King George" genre. I understand that it's difficult to perform in-depth legal analysis in an op-ed piece. But expressions of preference for a particular balance of power between Congress and the president -- with virtually no reference to case law, textual analysis, or history -- are an inadequate substitute.

JOHN adds: Almost everyone who writes on this topic expresses his opinion of what the law should be, rather than setting out a rational analysis of what the law is. In case after case, the federal courts have held that the President has the inherent constitutional authority to conduct warrantless surveillance for foreign intelligence purposes. There is no authority for the contrary proposition. None. Nor is there any authority for the proposition that Congress can take away the President's constitutional powers by legislation, any more than the President can negate Congress's constitutional powers by executive order. Justice Jackson's very silly concurring opinion in Youngstown, which every other member of the Court had the good sense to refrain from joining in, has never once been so applied.