These kinds of situations will require, it seems, legislation to fix. There are too many contra-indicating pieces of the puzzle to fix through judicial review. Its not a partisian issue, at all. This is fundamental bill of rights stuff. This is what happens when, on the one hand (a) the executive gets lazy and wants to do XYZ but circumvent the legislature; and (b) what does go into the legistlature is driven by burecratic and financial special interests. The benefits are concentrated, and the costs are dispersed. To reverse, the cost are high (the dispersed public must come together) and the individual benefit is low (as a single citizen). But the value of being a citizen is degraded without the Bill of rights, privacy, etc...