Solving the Constitutional Crisis

Vice president Gore says the NSA spying controversy occasions a constitutional crisis because the President is acting flatly inconsistent with a federal statute, the Foreign Intelligence Surveillance Act (FISA).  That's certainly true, if you believe, as I do, that the administration is wrong in arguing that the Authorization to Use Military Force (AUMF) that Congress enacted did not impliedly repeal or otherwise displace the FISA warrant requirements.  The President's only authority would then be his assertion of an exclusive power as commander-in-chief in this area.  Even the President's supporters must acknowledge that, at a minimum, it's an open question whether that's right.  But Vice President Gore also usefully turned attention away from whether the President acted unlawfully to what can be done about it if he did.  He makes a variety of recommendations, including the appointment of an independent counsel (IC).

In my view, relying on an IC wrongly frames the issue as if it concerns a kind of venal criminality as opposed to a potentially dangerous assertion of unchecked executive power.  But whether you agree with that or not, it must be said that the independent counsel is unlikely to be appointed.  And even if one was, suppose he agreed with the President's constitutional view and declined to prosecute.  Should that single person's judgment count as a conclusive determination of the merits of such a fundamental issue of separation of powers? 

So what is a solution?  One possibility is to pass a new statute making clear that the AUMF did not displace FISA.  But that just sets up the President to veto it, or to sign it with one of his now customary signing statemetns.

A better solution, I think, would be for Congress to pass a statute that kicks the question to the Supreme Court by amending FISA to confer standing for a declaratory judgment that the NSA program is unlawful.  The statute could authorize suits by persons who have a reasonable basis for claiming that they are chilled by the spying program, designating such persons as those whose employment regularly requires them to make overseas calls in connection with academic or journalistic work related to the war on terrorism.  Such a statute would significantly help overcome the myriad jurisdictional obstacles that the plaintiffs in the ACLU's suit are likely to face -- obstacles that arise because no one knows if the plainitffs have been wiretapped or not and because the discovery process is itself likely to be a nightmare even if it is permitted to get underway.  The Court's unlikely to confer standing to the current plaintiffs in the absence of a statute granting it on the basis of speculative claim of chill.  But it's much more likely to do so if Congress has given them a statutory right to sue.

Would a statute conferring such standing be constitutional?  The court has suggested that Article III's case or controversy requirement may prohibit Congress form conferring standing on any citizen to assert that the government is not following the law, but it has not gone so far as to say that Congress may not identify a more discrete injury - here chilling activity by a specified class -- and confer statutory standing upon them.  I doubt it would go that far.

Would such a statute have a chance of being enacted?  Such a statute might have real political appeal and thus actually get passed.  It avoids members of Congress having to re-affirm FISA in all its particulars, and it avoids them having to modify FISA in light of new circumstances when they are not being told about what the administration is currently doing.  Moreover, if the ultimate issue is whether the President has the lawful power to do what he is doing, why not make sure that the Supreme Court has a chance to set forth its view on that question?  The administration might still resist such a statute, but I think it puts it in an awkward position.  It's one thing to claim that a congressional prohibition is unconstitutional.  It's another thing entirely to argue that the Supreme Court should not be permitted to decide whether that's right.

  To be sure, this approach has a court-centric orientation, and that's no longer in vogue.  But for my part, it's well past time the Court weighed in on the President's assertion of unprecedent commander-in-chief powers.   Congress has recently done its part to limit the Court's power to review the scope of his authority through Senator Graham's bill restricting habeas on Guantanomo.  But Senator Graham has himself raised real concerns about the President's actions in connection with the NSA.   Now it's time for he and his fellow members of Congress to give the Court a chance to say what the law is.

Comments

[LawProf]

Very clever, David. I think you're onto something in suggesting that a congressional imprimatur would increase the odds of the Court finding standing. You're most likely right, doctrinally, as things now stand: a well-defined congressional injury should pass muster, in light of Kennedy's concurrence in Lujan and the majority opinion in Akins v. FEC.

But I'm not sure the votes are there for this sensible position any longer. Chief Justice Roberts was involved, I think, in the Lujan litigation, and in any case he subsequently wrote a very Scalia-esque, Take Care Clause-based, restrictive standing law review article. So he might well reject the distinction that Justice Kennedy drew in Lujan between a Congressionally-defined discrete injury and a statute authorizing a general right of citizens to sue. Now change O'Connor, who dissented in Lujan, to Alito, who likely has a Scalia/Roberts-like view of standing, and I fear that the narrow majority you had for standing has turned into a dissenting position.

Indeed, given the attention that this matter has raised, and the ability of Congress to deal with it head on, the Court might be that much more inclined to punt it to the political branches -- making the law of standing that much worse in the process.

These, at least, are some of the risks I see in such a strategy.

[postroad]

I am not a lawyer. At my site (http://www.goodshit.phlap.net) , a site not safe for work, at the very early entries, I have posted a document from NSA in which they suggest to the incoming president (Bush) that the 4th Amendment may perhaps need some new rules, etc etc--this really is NSA piece, along with others from that group, made public.
So what this tells me is that though Bush might have authorized spying on citizens without use of FISA, it was a huge agency that suggested it to him (approx 36 thousand people work there).
Note, too, that in a recent piece in NY Times the FBI complained about the huge loads of stuff they were getting from NSA and that they found nothing worthwhile in this stuff and had not the people power to process it. Question: if NSA gives stuff to FBI, is FBI to tap phones with or without court orders to look into NSA sweeps?

[Anonymous Liberal]

As I read the ACLU complaint, the plaintifs are not necessarily arguing that their "injury in fact" for standing purposes is the actual interception of their communications. They seem to be arguing that the very fact that illegal wiretapping is occuring at all chills their first amendment rights and impedes their ability to practice their chosen professions (journalist, defense attorney, etc.). So they've alleged what is at least an arguably cognizable injury that is causally related to an illegal government practice. And the injunction they seek would redress the injury by eliminating the chill factor brought about by the administration's lawlessness.

Under Lujan and other cases, isn't that, at least arguably, enough to establish standing, even if they plaintiffs cannot show that they personally were the subjects of illegal interception? They've alleged injury in fact, causation, and redressibility, and none of it seems to depend on any personal connection to the intercepts.

I'm curious what the bloggers at this site think of that argument. Will it fly? Predictions?

[Anonymous]

First, let me qualify my statements: I am a first-year law student, reading this blog as part of a class assignment.

That being said, I like postroad's argument, although I agree the dynamic of the Court has probably undergone a profound, if subtle shift.

My primary contribution is to bring up Raines v. Byrd, where members of Congress themselves brought suit challenging the line item veto as a violation of separation of powers. They initially lost on a distinction drawn between that case and Coleman v. Miller, which involved unlawful adoption of an amendment through questionable legislative procedure, but it seems that the wiretapping issue has created enough political momentum, both on the Hill and across the country, that attempts to keep the suit out of the Court would only hurt the President's case by arousing suspicion, regardless of whether judicial review happens to be in vogue. This is especially relevant to the Court, which presumably would not want to make any politically unpopular moves that might damage its prestige. Ironically, any harm to its prestige would be fast on the heels of the President's recent appointments; the Court would ostensibly be stuck between towing the President's line and, if popular resentment were strong enough, damaging its own credibility and hence reducing its ability to tow that line in the future. Congress may ultimately be the biggest winner under this scenario, if not in reducing the power of the Executive and Judicial branches, then in winning the support and trust of those citizens looking for an honest and effective political process, not the power grab mentality that seems to have re-emerged in the past decade.

Keep in mind my first sentence, and enlighten me as you will.

[1L Too]

In response to "Anonymous Liberal":

Given my limited experience with constitutional interpretation, my understanding is that the court would not recognize a general 'chilling effect' as the "personal injury fairly traceable to the defendant's allegedly unlawful conduct" mentioned by Justice O'Connor in Allen v. Wright (468 U.S. 737). The court took, and I assume still takes, a dim view of injuries in the abstract and suits by citizens whose only interest is the enforcement of the law. O'Connor then goes on to reject the idea that the court ought to be "continuing monitors of the wisdom and soundness of Executive action. . . ." Sadly, LawProf is probably correct in saying that the forthcoming composition of the court is likely to be even less receptive than this 1984 iteration to tenuous standing claims. While we can distinguish the current situation as one in which no injured party is likely to be able to gain knowledge of their injury, I suspect that the court will deny that argument by saying either: i) it's too bad that the injured parties can't meet the constitutional requirement, go talk to Congress, or ii) the threat of terrorism warrants heightened Executive discretion.
Prof(?) Barron's idea seems like a good one to me, although I have disclaim that I don't know anything about Congress' authority on the matter. It does seem to have a distinct flaw, pragmatically speaking, in that it has to pass a Republican Congress. However, as I've been getting this distinct feeling that Bush has been letting his Congressional allies hang on ethical issues, they might be more receptive than I'm giving them credit for; with midterm elections on the way, who knows.

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