Solving the Constitutional Crisis -- Part III

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?

Comments

[Lex Aquila]

There is no constitutional crisis. Schumer's bill sets forth an absurd cause of action. I am disheartened at the notion (though not new or one-sided) that the US Code should be a vessel for this type of thing. The "reasonable fear" language can't go below the constitutional minimum in any event, so let someone who actually thinks they've been tapped challenge this thing--someone with actual injury. I don't buy all of the administration's rationales, but this is ridiculous. Perhaps Al Gore believes that invention of a purported constitutional crisis is the only thing that can top his invention of the internet.

[Generalized Grievances]

Thanks. I have yet to hear how this bill sets out an "actual injury." Being a Democrat when Democrats are out of power is not an "actual injury"...it is a "generalized greivance."

[Dapper Dan]

Who is this Lex person? No constitutional crisis - my ass! If our country's founders were alive today
they would be appalled and disgusted at the invasiveness of this administration. If this isn't a constitutional crisis, then what is? Once upon a time, this was a free country.....

D. Dan

[Lex Aquila]

I am that Lex person, and I submit that Al Gore's suggestion with this post's author that the President's purported violation of a federal statute (FISA) does not represent a constitutional crisis. First, the President has a right to interpret the constitution and statutes coequal with other branches, which is a necessary component of his executive authority (of any executive authority). I do not propose that the Supreme Court couldn't rule this unconstitutional--it could in a proper case, but let someone bring a proper claim within the constitutional standards for the exercise of article three Judicial power. This standard for a constitutional crisis is unbelievable: the unilateral action of one branch believed by some to be in violation of law is NOT a constitutional crisis. The President is also not some random administrator.

[Oren]

>

If the administration won't tell us who they are spying on or use the evidence in court than it is completely feasible that this program will evade judicial review altogether.

This would be unacceptable to our system of government.

Personally, I would recommend the appointment of an independent counsel to investigate the matter and bring it before a grand jury if there are charges to be filed. Fat change of that happening.

[Lex Aquila]

The Independent Counsel Act expired on June 30, 1999. You'd have to ask General Gonzalez to appoint a special prosecutor or special counsel pursuant to DOJ regulations. See 28 CFR Part 600. Or maybe we can expand the millions we're spending for Special Counsel Fitzgerald to investigate who leaked Plame's identity and to prosecute Scooter Libby. John Dean also wants a special counsel to investigation the intelligence and White House's assertions about WMDs prior to the Iraq war. See John Dean, "Why A Special Prosecutor's Investigation Is Needed To Sort Out the Niger Uranium And Related WMDs Mess". We'll have to build more office space!

[Generallyclean]

But Schumer's bill doesn't deal with some of the Article III standing requirements, especially that highlighted in Lujan, ie, that there be an injury in fact. More here http://selectedinsights.blogspot.com/2006/04/dumb-legal-argument-2984.html

[AnonProf]

For those concerned about a lack of actual injury and about generalized grievances, I suggest taking a look at both David's previous post on this topic and the comments following it answer the objection. First, as David's prior post demonstrates, Justice Scalia's opinion in Lujan is not the controlling one. Rather, Justice Kennedy's concurrence, which takes a much wider view of what constitutes an injury, and says that Congress may create injuries that would not otherwise exist, is the controlling opinion in Lujan. Congress here is doing exactly that -- defining as a legal cognizable injury being chilled from making certain foreign telecommunications. Second, Akins v. FEC (a 7-2 opinon, I believe) can easily be read to kick the teeth out of Scalia's opinion in Lujan. In that case, Congress created standing for all voters deprived of information. The Court rejected the argument that the proferred injury was too "generalized," and indeed, it said that there is no generalized grievance bar when Congress passes a statute that specifically confers standing. Here, the statute confers standing on a far narrower class of people than did the statute in Akins. It seems to me for these reasons that David is entirely right: there will be no standing barrier if Schumer's amendment is enacted into law.

[Lex Aquila]

AnonProf: I read the prior posts. Congress can perhaps create the standing framework and nudge things one way or another a bit, but there must still be a distinctive concrete injury under the rule of Lujan. This is all that various commentators here and elsewhere are saying w/r/t the Schumer bill: the text does not identify a distinctive concrete injury.

Does Lujan require a concrete injury? The “irreducible constitutional minimum of standing” is laid out in Part II, of Scalia’s opinion for the Court, joined by Rehnquist, White, Kennedy, Souter, and Thomas. There the Court held: “First, the plaintiff must have suffered an "injury in fact" -an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972); 1 and (b) "actual or imminent, not 'conjectural' or 'hypothetical,'" Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95,102 (1983)).”

The no-injury analysis is at Part III-A, again joined by 6 Justices (including Kennedy).

The notion that Congress could create the injury by statute was discussed in Part IV (again joined by 6 Justices): “Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch-one of the essential elements that identifies those "Cases" and "Controversies" that are the business of the courts rather than of the political branches. "The province of the court," as Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 170 (1803), "is, solely, to decide on the rights of individuals." Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies' observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation-of-powers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an "individual right" vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed," Art. II, § 3. It would enable the courts, with the permission of Congress, "to assume a position of authority over the governmental acts of another and co-equal department," Massachusetts v. Mellon, 262 U. S., at 489, and to become" 'virtually continuing monitors of the wisdom and soundness of Executive action.'" Allen, supra, at 760 (quoting Laird v. Tatum, 408 U. S. 1, 15 (1972)). We have always rejected that vision of our role . . . .”

Having been subscribed to by 6 Majority Justices, Part IV is the rule of the case, various commentators’ protestations to the contrary notwithstanding. Any concurrence as to Part IV is dicta, and considered only as persuasive to a lesser or greater degree. The only remaining question is what Part IV means. This is where Kennedy’s concurrence comes in, I suppose. He says: “In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view. See Warth v. Seldin, 422 U. S. 490, 500 (1975); ante, at 578. In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The citizen-suit provision of the Endangered Species Act does not meet these minimal requirements, because while the statute purports to confer a right on "any person ... to enjoin ... the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter," it does not of its own force establish that there is an injury in "any person" by virtue of any "violation." 16 U. S. C. § 1540(g)(1)(A).”

Schumer’s bill does attempt to slip through this purported Lujan loophole. The argument, it is said, is about whether Schumer’s bill has “identif[ied] the injury it seeks to vindicate and relate[d] the injury to the class of persons entitled to bring the suit.” But this line can put the cart before the horse. One still has to determine whether, as the Majority opinion squarely held, “a subclass of citizens” has been identified “who suffer . . . distinctive concrete harm.” As I read the no-injury commentators, the point is that by their reckoning the “reasonable fear” machination vis-à-vis wiretapping does not identify a “distinctive concrete harm.” Ergo, no constitutional standing.

[AnonProf]

I appreciate your comments, Lex. I don't have time to make a full response, but a few points will suffice. Basically, I think you substantially overread Lujan. To be sure, you've made the argument that the Administration will no doubt make should the case go to court. But I think Lujan is in the end full of Scalia's sound and fury but signifies nothing.

First, Lujan is the only case ever to insist that Congress couldn't grant standing. Justice Harlan, dissenting in Flast v. Cohen, suggested that at a minimum Congress could always create standing, and no court until the Lujan Court thought Harlan's position too adventurous. It would therefore be quite radical indeed to further restrict standing when Congress has narrowed the class of plaintiffs entitled to sue as much as the Schumer language has.

Second, the Kennedy concurrence is somewhat mysterious in meaning, but I think it safe to say that it applies not only to part IV of Lujan, but also, given the language Kennedy uses and the extent to which it differs in overall approach from Scalia's, qualifies the whole of Scalia's analysis -- by essentially echoing Justice Harlan in Flast. It seems to me that under the Kennedy concurrence, Congress could create standing anytime it wants, so long as it first defines an injury of some kind. The problem in Lujan, under Kennedy's analysis, is that the statute was badly drafted; it didn't create an injury at all, but only a right to sue. Thus under Kennedy's concurrence, it seems that Congress could (admittedly at the extreme) create standing if it, for example, gave the public a property right in the preservation of endangered species. The Schumer bill thus takes care of the injury problem by defining the injury narrowly and limiting the right to sue to those who are likely to have refrained from telecommunications to specific areas for specific reasons.

Third, your strongest argument is that "reasonable fear" is not a "real" injury. Such an injury is a probabilistic one. And to be sure, probabilistic injuries, in cases such as Allen v. Wright, Simon v. Eastern Kentucky, Warth v. Seldin, and Lyons v. City of Los Angeles, were deemed insufficient to create standing. But those cases (except for Lyons)were "triangular" in structure: they involved suits against the government for taking or failing to take action against third parties who were violating the law. That is not the case here: this would be a direct suit agsint the government for its own violation of the law. Moreover, and perhaps more importantly, in each of those cases where the injury was deemed too "speculative," there was no statute authorizing suit -- and the presence of a statute makes all the difference in terms of making an injury sufficiently concrete rather than speculative (as I'll explain further below in discussion Akins v. FEC). I am, in short, not convinced in light of Kennedy's concurrence that probabilistic injuries can't be adequate to create standing *if Congress creates them,* as it has here.

Fourth, there's Akins v. FEC, which Kennedy joined and which really brings out the meaning and importance of his concurrence. There are, of course, several ways to read Akins. But it's important to note that Scalia positively fumed in dissent. He saw, quite rightly, that Akins is utterly incompatible with Scalia's Lujan opinion. Indeed, read for all it is worth, Akins totally guts Lujan.

To that end, look at how clever Breyer's Akins opinion is. First, it completely destroys the generalized grievance prohibition when Congress has spoken. Before Akins, I would have said that generalized grievances are not enough to create standing. No, no, Breyer says in Akins, generalized grievances are just fine; they've never been a problem. The problem, rather, was not the generality of the grievance, but rather the fact that the injury was "abstract." But when Congress passes a statute conferring standing, poof!, the injury is no longer abstract but is made concrete.

More provacatively, what Breyer, it seems to me, is essentially doing in the Akins opinion is smuggling in the leading academic critiques of standing law (see, e.g., Fletcher, "The Structure of Standing," Yale Law Journal and Sunstein's three articles on Standing in public law cases). Akins says that, when Congress has spoken, standing is essentially a question of statutory interpretation. We start and end with Congress' work. Thus, if Congress has expressly created a right of action in individuals, then we have an easy case; those individuals have standing. This is because standing under the Akins approach is not some abstract, metaphysical question of who has a "real" injury. Indeed, such an approach is incoherent. Legal injuries don't exist in nature; they are defined in law, as by Congress. Standing, on this analysis, which Breyer essentially adopts, is simply a question of whether Congress has been sufficiently clear enough to successfully confer a right of action on a particular plaintiff.

To be sure, we know that Chief Justice Roberts, who argued Lujan, is a big restrictive standing fan. (See his Duke LJ article). And I imagine Justice Alito is too. And they'd be joined by Justices Scalia and Thomas. But I think Breyer, Ginsburg (who herself liberalized standing significantly in Friends of the Earth v. Laidlaw), Stevens, Souter, and Kennedy would easily be on board with standing should the Schumer bill be enacted into law.

In sum, Lujan is in the last analysis just Justice Scalia being provocative, writing an opinion on far broader grounds than he needed, and attracting then insufficient, and certainly not enduring, support for his rather extreme views.

[Not Convinced By Anonymous Law Professors]

Standing, on this analysis, which Breyer essentially adopts, is simply a question of whether Congress has been sufficiently clear enough to successfully confer a right of action on a particular plaintiff.

Ok...so if Congress has been sufficiently clear, then what is the discrete, concrete, and particularized injury-in-fact that is identified in Schumer's bill?

[AnonProf.]

I think the bill is pretty straightforward. If you're a person who engages in terrorism research or commercial transactions with particular countries and who has reasonable fears of having had communications intercepted by NSA, the bill says you have a cause of action. The injury is the risk of being intercepted illegally -- a violation of your privacy rights -- and the class of people who can sue are the people who actually engaged in such communications that are subject to interception under the NSA program. This is not a general citizen suit provision, and it doesn't create a generalized interest in enforcement of the law. I, for example, could not sue, no matter how much I might dislike the NSA program, because I don't make international calls. Indeed, the Schumer bill gives a right to sue to a much smaller group with standing than the group in Akins, which included any and all voters who requested information from the FEC and didn't get it.

Standing is only a problem if you somehow think that an injury has to be a common law-like one, and that Congress lacks the power to protect citizens against different types of harms, which that don't manifest themselves the way standard torts do. Scalia takes this view. But in light of Akins and Kennedy's concurrence in Lujan, which says Congress can turn unactionable harms into new legal injuries, Scalia's narrow commonlaw-like view is not the Court's.

[Who Cares About Scalia, I am Still Unconvinced By Anonymous Law Professors]

AnonProf: The injury is the risk of being intercepted illegally -- a violation of your privacy rights -- and the class of people who can sue are the people who actually engaged in such communications that are subject to interception under the NSA program.

"The risk of being intercepted illegally"? What if the interception is legal? Then I guess there is no injury and thus no standing to sue.

[Tyrone Slothrop]

I find it odd that one might worry about a chilling effect in the First Amendment context, and yet suggest that there is no injury here cognizable from an Article III perspective.

[Not Convinced By Anonymous Law Professors]

Well, if you look at Marty Lederman's argument on scotusblog, he argues, literally, that the "conceded existence" of the program is what causes someone not to use wire communications. Since the "conceded existence" is the problem, the solution is for the government to claim the program no longer exists, so as to dispel the reasonable fear. I have never heard of a Court ordering public officials to make public statements about top secret programs, but perhaps I am not familiar with the traditional uses of the All Writs Act.

[Martha Bridegam]

Nice to see this response to the Yoo Doctrine is getting somewhere. But from a rhetorical standpoint, is it the best approach? Doesn't it invite the question, "Why did you refrain from communicating? What did you have to hide?" There are solid arguments that answer such a question, of course, but they won't persuade some of the public. So why not push for disclosures of the actual intercepts and then litigate on behalf of someone whose provably blameless communications have been provably eavesdropped?

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