Forcing the Issue

To date the most insightful commentary on the NSA scandal may be this one:

But this is not a case in which the President acted with Congress's consent, where his authority is at its apex; nor where he acted unilaterally, in the face of congressional silence. Instead, this is a case in which the American public had a comprehensive, contentious, and long public debate, borne of a serious history of government abuse, and our elected representatives -- both Executive and Legislature -- regulated this subject matter in great detail (going so far as to enact a specific exigency-in-war provision), and flatly prohibited the conduct in question.

So what the president has done is not to assert authority where the circumstances are ambiguous; rather he has directly contravened, explicitly violated, the law. And--don't forget--has caused others to do so. When or if a prosecutor--or a private citizen (as provided explicitly by the law)--takes one or more of these staffers to court, then are they, the staffers, also going to be protected by executive privilege? What about the staffers' subordinates? It reduces to an absurdity in which anyone can be ordered by the president to break any law.

Congress, and the courts, cannot withstand such a direct frontal assault on their very existence as co-equal branches of government. They will either fight back, or be forever powerless.