Madam President, I have sought recognition to comment about the serious erosion of the doctrine of separation of powers during the course of the past two decades. With the pendency of the confirmation of Solicitor General Elena Kagan for the Supreme Court of the United States, this is a particularly apt time to discuss this matter since these issues were a part of the confirmation process. What we have found in the course of the past two decades is that Congress has lost considerable institutional authority, with the Court taking over on congressional authority or by refusing to decide certain cases, leaving the executive branch a great deal of what had been congressional authority. We find, for example, that the Foreign Intelligence Surveillance Act--where the Congress of the United States determined that the exclusive way for obtaining a wiretap on the invasion of privacy was through a court order--has been abrogated to a substantial extent by the terrorist surveillance program, which I shall speak about at a later time. Similarly, when you have the Foreign Sovereign Immunities Act, again by deciding not to take the case involving the survivors of 9/11, the Court has left the executive branch with considerable authority which, I would submit, rightfully belongs to the Congress.…
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