The whole post is worth a read, but I like Glenn Greenwald’s views about Sen. Orrin Hatch:
This seems to be an accurate summary of the evolution of Sen. Hatch’s views of constitutional law:
(1) The Congress has the right to restrict the President’s eavesdropping activities, and to make certain eavesdropping activities a criminal offense punishable by up to five years in prison.
(2) Therefore, Hatch votes several times for FISA.
(3) Every President since then complies with the law — including President Reagan and Bush 41 during the height of the Cold War – and no Administration or member of Congress challenge its constitutionality.
(4) George Bush gets caught violating FISA by engaging in the precise eavesdropping which FISA criminalizes.
(5) Hatch says that the Leader did nothing wrong because the law which the Leader violated — the same one Hatch voted to enact and to amend repeatedly — is unconstitutional.
As Greenwald points out, Hatch is now arguing that censure of a President is unconstitutional, although he was all for it when Clinton was President.
I had a debate with someone right-winger once, in which he insisted that the constitutionality of certain laws is determined by all three branches of government — not exclusively the Supreme Court. Hatch’s back-and-forth stance on what is (and isn’t constitutional) points precisely to the flaw in that argument: Congressmen fall to the whim of politics and will change their views on "constitutionality" to suit the political winds. An independent judiciary however, will not.