A suggestion that I made on this blog some time ago for a bill to establish standing to challenge the legality of the president's NSA surveillance program has now actually become a proposed bill, S.2468, by Senator Schumer. Its key part provides:
STANDING.—A United States citizen who has refrained or will refrain from wire communications because of a reasonable fear that such communications will be the subject of electronic surveillance conducted without an order issued in accordance with title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) under a claim of Presidential authority under either the Constitution of the United States or the Authorization for Use of Military Force (Public Law 107–40; 115 Stat. 224; 15 50 U.S.C. 1541 note) shall have a cause of action and shall be entitled to declaratory or injunctive relief with respect to such electronic surveillance.
For reasons spelled out in earlier posts, I think this is an excellent idea. It represents the most appropriate mechanism for addressing the constitutional crisis occasioned by the President's extraordinary assertion of Article II authority. And, for reasons given in my earlier posts, without a bill of this sort, I think the chances of such a case being decided on the merits by the high court in the forseeable future are quite slim.
Of course, I am assuming that we should look to the Court to decide such a question. Should we? Of course we should. There's a reason that both Roberts and Alito in their hearings relied on the rationale set forth in the Youngstown case in responding to Senators' questions about the proper scope of presidential war powers. The reason is that in Yongstown the Supreme Court ruled on whether the President has the authority to disregard a federal statute in a way that tangibly affected the rights of U.S. person pursuant to his claimed powers as commander in chief. Just as the Court was the appropriate forum for adjudicating the merits of Truman's claim of unchecked authority then, the Court is the appropriate forum for adjuciating the merits of Bush's similar claim now. Schumer's bill simply removes some technical obstacles -- including some that are included in the current verison of FISA itself -- to the Court doing just that. If the current administration is confident that its actions are lawful, and that the holding in Youngstown is distinguishable, then I can see no legitimate reason why it should fear having the Court assess whether it agrees or not. The President has taken a broad view of his powers, but I don't yet think he's been willing to go so far as to say he's not even bound by the Supreme Court's judgment as to what the constitution means. So let's make sure that the Court has a chance to weigh in on the question.
One blogger has suggested that the Schumer bill is bad because it's another Schiavo-like statute, dangerously carving out a single case for special judical review. But that's clearly a strained contention, as Marty Lederman persuasively argues. After all, in Schiavo, many judges had reviewed the legal issue before Congress passed it's special staute. Here, no judge has ever weighed in on the issue, and all the Schumer bill does is ensure that some court will have the chance to do so. Plus, the comparsion of the Schiavo case to the most momentous assertion of presidential authority in modern times -- and one that would potentially affect thousands of U.S. persons -- does not stand up very well upon a moment's reflection. No doubt, that's why that same blogger has himself conceded that the Schiavo comparison really doesn't hold up very well after all.
Some others no doubt think that censure is the more appropriate route. I am not one of them, but Senator Feingold himself thinks that Schumer's bill is a good idea, so I don't see why those who support Feingold's censure resolution should be hostile to it. A Supreme Court decision declaring the president's action unlawful has got to be at least as powerful a rebuke as a censure resolution by the Senate. Ah, but you say, perhaps the Court would uphold the program? I do not believe that it would, but I also think that if it did, it would be rather more difficult to argue that the President was a scofflaw.
In the end, it seems pretty simple to me. We have a Supreme Court for a reason. It helps to ensure that no one - not even the president -- is above the law. A long line of important supreme court cases have adjudicated the extent of the President's Article II powers. How then can it be that the Supreme Court is not the appropriate institution to assess the lawfulness of the most significant contemporary instance of an aggressive use of presidential war powers? And thus how can it be a mistake for Congress to do everything in its power to ensure that the Court has the opportunity to perform its historic function in this context?