My colleague Roger Pilon has a fine intellect. But I cannot follow the logic of his recent endorsement of the “Protect America Act.” Like many of my colleagues, I was startled to see the establishment of rules restricting the ability of the administration to collect intelligence on Americans compared to central planning of an economy: “Congress, to say nothing of the courts, can no more manage such affairs than it can the economy.” I see no good grounds to compare the two. The establishment of restrictive rules — side constraints — on spying is quite different from attempting to direct the behavior of countless consumers and producers.
The Congress is authorized to suspend the Writ of Habeas Corpus, as Article I, Section 9, which explicitly restricts that power, implicitly assigns the power to Congress: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it.” The lawyers of the Cato Institute took the lead in opposing the attempt of the administration to suspend that writ.
But where is the Congress authorized to suspend the Fourth Amendment?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.