Friday, February 10, 2006

Is Senator Specter’s Brilliant Idea Constitutional?

For those of you that do not eat, sleep, breathe, and otherwise have no life outside of Congress and C-SPAN you probably missed the fireworks over this week's testimony by Attorney General Alberto Gonzales with respect to the now infamous NSA Surveillance Program (I’m not going to use either party’s descriptive moniker, except to note that “liberals” have tended to insert the word “domestic” before surveillance and “conservatives” have countered this by inserting “terrorist” before surveillance). I’ve discussed the constitutionality of this in some detail previously, and there are plenty of other (read; better) opinions floating around on the internets if you want more constitutional law than one can read in a single (or several) sitting(s). The latest turn of events, however, appears to stem from a suggestion during the hearings made by Senator Arlen Specter (R-Pa), Chairmen of the Senate Judiciary Committee, that the President should submit the program and all of its details to the Foreign Intelligence Surveillance Court (FISC) for a review of its constitutionality. The Wall Street Journal’s (WSJ) Editorial Page takes a strong jab at the FISC and Specter’s idea by stating that “GOP Senator Arlen Specter is saying he wants to write legislation putting even more power in the hands of FISA judges. This isn't merely unconstitutional [] … in a world of WMD and fast-moving transnational terrorists, it's dangerous.” This bold assertion of unconstitutionality is where I want to focus this post. Not because I necessarily disagree with the WSJ’s conclusion, but because I want to show that it’s a lot more complicated than they are making it seem. As usual click Read more for the rest.

At first glance there appears to be two major constitutional problems with Specter’s idea: First, it would seem to violate the principles of separation of powers by unduly encroaching into powers that are within the prerogative of the Executive Branch and; second, it appears to be a call for an “advisory opinion” by a federal court, which, according to Article III of the Constitution, federal courts do not have the power to issue.

I’ll start with the separation of powers issue, in part because it is both the easiest argument to make and the least legal in nature. Generally speaking, the discretionary decision to pursue a matter in the courts of the United States is an “executive power.” Take, for example, the prosecution of criminals; this is considered an inherently executive function. Prosecutors, District Attorneys, State’s Attorneys, and Attorney’s General are all “executive branch officers” whether at the local, state, or federal level. They all generally answer to the highest executive in their branch of government. We’ve all heard the phrase “prosecutorial discretion” (and I know that one my co-bloggers is intimately familiar with it), which essentially means that it is up to the executive to decide whether or not to pursue a particular case. Legislatures have little control over this process. While legislatures can pass laws and regulations making certain behaviors subject to criminal prosecution, it is commonly accepted that legislatures cannot themselves engage in prosecution. Nor can legislatures pass laws that would force executive officials to take on specific prosecutions. As an inherently executive function, the decision about whether to take a matter to a court is something that Congress cannot encroach without unduly aggrandizing their own powers at the expense of executive power. Intuitively, given the tri-partite structure of our government this makes sense, which is why it was a bit surprising to hear Senator Specter make such a suggestion. While the executive could voluntarily submit the NSA program to the FISC if it wanted to, it seems fairly clear that Congress cannot pass a law requiring them to do so.

On the other hand (I know, I know there is always another hand with me), Congress is not wholly without recourse in this instance. Article I grants Congress the power of the purse, and as such the Supreme Court has given Congress expansive authority to set conditions on the use of said money. See South Dakota v. Dole, 483 U.S. 203 (1987). While Dole dealt specifically with Congress’s ability to condition federal money with respect to the States, its principles appear to be relevant here. In other words, Congress could potentially condition the continued funding of the NSA on the executive receiving a ruling on the program’s constitutionality from the FISC. It’s unlikely that Congress would de-fund the entire NSA; however, they could prevent the President from spending any federal funds to carry out this specific NSA program until the executive got a ruling from the FISC. Moreover, Congress could prevent NSA officials from receiving salaries, benefits, or reimbursement for expenses, if necessary to ensure compliance with its wishes. Politically I know that this is an unlikely scenario, but I feel compelled to point out that what Specter proposes is not necessarily a violation of the Constitution, at least not with respect to the principles of separation of powers.

Now it’s on to, in my opinion, the more interesting part of Senator Specter’s proposal; namely the issues regarding “advisory opinions.” Article III of the Constitution extends the judicial power of the United States to only “cases” and “controversies.” Throughout its history, the Supreme Court has interpreted this requirement in a number of ways, imposing some constitutional requirements, such as the “doctrine of standing” on persons bringing matters before the Court and attempting to have them qualify as “cases” and/or “controversies” that the Court can decide. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998); see also Baker v. Carr, 369 U.S. 186, 204 (1962). In addition, the Court has also adopted some “prudential” restrictions on the exercise of its judicial powers. The doctrines of “ripeness,” “mootness,” and “political question,” are all examples of non-constitutional prudential (self imposed) limits on the exercise of judicial power. Historically, it appears that the Court has also adopted a prohibition on the issuance of “advisory opinions, however, as I will show there is far from a clear precedent for its application.

The prohibition on advisory opinions appears to date all the way back to 1793 and Chief Justice John Jay. In 1793, noting constitutional separation of powers principles and functions, Chief Justice John Jay and the Supreme Court refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution. See 3 Correspondence and Public Papers of John Jay 486-489 (H. Johnston ed., 1893). According to Chief Justice Jay, “[t]hese being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seem to have been purposely as well as expressly united to the Executive departments.” Id. at 448. Although the Court has generally adhered to this policy of refusing to issue advisory opinions, there appear to be several examples of “advisory opinions” issued by the Justices. For example, it appears that the Justices, responding to a letter calling for suggestions on improvements in the operation of the courts, drafted a letter suggesting that circuit duty for was unconstitutional, but they apparently never sent it. See 2 G. McRee, Life and Correspondence of James Iredell 293-296 (1858). The letter was apparently never forwarded to the President. Writings of Washington, see id. at 31-32 n. 58. When the constitutional issue was raised in Stuart v. Laird, 5 U.S. (1 Cr.) 299, 309 (1803), it was passed over with the observation that the practice was too established to be questioned. In another instance Justice Johnson relayed to President Monroe, apparently with the knowledge and approval of the other Justices, their views on the constitutionality of internal improvements legislation. See 1 Charles Warren, The Supreme Court in United States History 595-97 (rev. ed. 1926). Finally, Chief Justice Hughes, in a letter to Senator Wheeler on President Roosevelt's Court Plan, appears to have questioned the constitutionality of a proposal to increase the membership and have the Court sit in divisions. See Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st Sess. (1937), pt. 3, 491; see also S. Tyler, memorirs of Roger B. Taney 432-435 (1876) (noting Chief Justice Taney's private advisory opinion to the Secretary of the Treasury that a tax levied on the salaries of federal judges violated the Constitution).

Despite these examples, it nevertheless appears that none of these so-called “advisory opinions," have been considered or relied upon as formal declarations of the Court, nor does it appear that they were required by any legislation of Congress. Many scholars have noted these examples and have gone on to contend that the Court would no doubt have developed the rule against advisory opinions as a logical application of the case and controversy doctrine.

Unlike the separation of powers argument, I can think of no alternative to the prohibition on advisory opinions that would pass Constitutional scrutiny. Thus, it seems that Specter’s proposal would violate Article III’s requirement of a case and/or controversy. Some may point to the “Exceptions and Regulations” clause of Article III, however, that likely only extends to jurisdictional issues, and does not allow Congress to enlarge the grant of judicial power extended by the Constitution. As always, I’m open to suggestions and revisions of my research and analysis and look forward to the informed comments of my cohorts.


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