Unfortunately for the Country, Sen. Roberts got it wrong. The program may possibly be necessary: that is debatable. But it certainly is not legal. Nor can it be justified by any supposed "core constitutional authority of the president."
The Supreme Court ruled directly on a very similar case in the early days of our Country, when the Founders' intentions were fresh and clear in people's minds. The question involved the President going against a direct Law of Congress, regarding a military action in a time of semi-declared war. And the Supreme Court ruled that the President's actions were illegal, because they violated a Law passed by Congress.
In the case "Little v. Barreme," in 1804 The Supreme Court ruled that a part of President John Adams' instructions to seize ships was in conflict with an act of Congress and therefore illegal. Congress had passed a law instructing the President to seize certain ships going to France. President Adams changed that to include certain ships that were either going to or coming from France. A ship was seized coming from France. So the seizure followed the Presidential instructions, but violated the Law passed by Congress, which only involved ships going to France. On appeal, the case came before the Supreme Court.
Chief Justice Marshall wrote, "On an appeal to the circuit court this sentence was reversed, because the Flying Fish was on a voyage from, not to, a French port, and was therefore, had she even been an American vessel, not liable to capture on the high seas."
One scholar described the case like this: "But Chief Justice Marshall wrote that even in his capacity as commander in chief, the president could not authorize a military officer to perform illegal acts. Only Congress can make laws, Marshall argued, and regardless of the fact that the president may have ordered his subordinate officer to perform an illegal act, that act was still illegal, and the officer performing that act was responsible for his behavior. Not even a military officer, Marshall wrote, could use the 'instruction of the executive' as an excuse for performing an illegal act."
You can read this decision at
LITTLE v. BARREME, 6 U.S. 170 (1804): http://laws.findlaw.com/us/6/170.html
Blessings to you. May God help us all. And may God bless America!
Rev. Bill McGinnis, Director