I read Daily Kos only occasionally, so I just came across the post "A Little Bit of Monarchy" by Armando on the NSA surveillance program that includes some criticism of my long post last week. Armando's post is a week old, but the Daily Kos gets a jazillion readers, so I thought I would respond and explain Armando's misunderstanding. (Plus, I believe Charles Krauthammer may have had the same misunderstanding, so maybe it's a widespread misconception.)

Apparently, partisans across the spectrum have failed to understand Orin Kerr's analysis of the NSA surveillance program, so he has posted a clarification. I'm posting it here both because it seems to be a response to Krauthammer's nutball essay in the WaPo that I flamed, but also because who knows who else has missed this point (either accidentally or intentionally).

Here is my shortened but extended explanation:
No, the words legal and constitutional do not mean the same thing.
Yes, its possible for something to be illegal and constitutional at the same time.
If its illegal, its illegal, even if its constitutional. Its still illegal.
Doing something illegal is not quite as bad as doing something unconstitutional, but its still bad.
In this case there is an arguement that the law making the action illegal might be unconstitutional, but that arguement is very weak.
There is an arguement that the action might not be illegal, but that arguement is also weak.
Anyone who trumpets this analysis as a clear vindication of the President isn't paying attention.

The Volokh Conspiracy - No Monarchy Here: