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Friday, July 14, 2006

More on the Specter Bill

Over at Balkinizaton, Marty and Jack have three must-read posts (here, here, and here) that highlight the myriad flaws in the Specter bill, and, perhaps as importantly, in the press's coverage thereof.

Jack, in particular, thinks the real key is new section 801, which delineates the extent to which the bill doesn't impinge upon the President's constitutional authority, which he views as "actually the most important part of the bill; the rest is mere camouflage." I must say that I'm not sure I agree. It does raise an interesting question -- once Congress has authorized a program, does a congressional statement of what it views as the President's constitutional authority matter? Put differently, can Congress by statute expand the President's constitutional power? I take as a given that it fundamentally alters the Youngstown analysis, but in a manner that changes the balance of constitutional power from the status quo? Either way, it still strikes me as disturbingly myopic policy...

One separate point that I've been dwelling on this morning: At least when it comes to fed courts stuff, I like to think I know something, and I couldn't come up with any prior examples of Congress so oddly forcing review of a specific legal question into one particular court, with the provision that the suit in which the question arises be transferred back to the "originating" court once that question is answered. [Without that provision, the Federal Circuit comes to mind.] Especially in criminal cases, I still don't see how this is possibly going to work.

Posted by Steve Vladeck on July 14, 2006 at 08:43 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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once Congress has authorized a program, does a congressional statement of what it views as the President's constitutional authority matter?

If the statute depends on a view of the President's power that is wrong, but the statute is constitutional and the statute plus the President's power puts him in Category I of the Youngstown framework, then on what basis would the Supreme Court strike down the Congress' view of the President's power? It seems that if the clause is vague and the Executive and Congress agree and there is no specific provision of the bill of rights that is violated, then the Supreme Court cannot intercede without issuing an advisory opinion. So the question is: does the Supreme Court's view matter? And the answer, according to Article III, is no.

Posted by: Not A Law Professor | Jul 14, 2006 10:58:54 AM

Re: "I couldn't come up with any prior examples of Congress so oddly forcing review of a specific legal question into one particular court, with the provision that the suit in which the question arises be transferred back to the "originating" court once that question is answered. "

Here are two comparisons. The second is closer than the first:

1) The (now-expired) Independent Counsel statute. I believe that IC's were appointed and supervised by the special division of the DC Circuit (composed partly of judges from other courts). Then the prosecution would be brought and decided in the appropriate regional district court and circuit. Then related matters (such as counsel reimbursement for those not indicted) would be decided by the DC Circuit special division.

2) MDL. Cases originate all over the country. They are brought before the MDL panel to decide on pre-trial consolidation. They are consolidated for pre-trial purposes (including discovery, class certification, and dispositive motions) in a single district court. BUT for trial they are sent back to the original courts.

Posted by: Lawyer | Jul 14, 2006 11:52:51 AM

"Lawyer" -- The JPML comparison is, easily, the best one I've heard thus far. But even in that context, the issue is usually whether there are multiple lawsuits arising out of one _claim_ (e.g., Enron), where consolidation makes sense. See also, on this, the Multiparty, Multiforum, Trial Jurisdiction Act of 2002. Here, by contrast, individual claims -- the warrantless search in this case violated my constitutional rights -- would get taken out of the hands of district judges, and sent to the supersecret FISA Court, perhaps never to reemerge (see my noting of the dismissal provision in last night's post).

Hardly a perfect analogy, no?

Posted by: Steve Vladeck | Jul 14, 2006 1:12:34 PM

"Not a Law Prof" -- The Court _can_ strike down governmental action even when it's the President and Congress acting in concert. See, e.g., Lopez and Morrison and the Commerce Clause. My point is that although the statute would render the President's conduct _constitutional_, it wouldn't necessarily add to the President's inherent constitutional power -- I just don't see how Congress can do that by statute.

Posted by: Steve Vladeck | Jul 14, 2006 1:14:02 PM

Steve,

I take your point, I just think it is wrong. In Lopez and Morrison, the Court is striking down ultra vires statutes. In other words, the statute is void because Congress lacked the constitutional authority to pass it. That says nothing about the scope of a President's inherent power under Article II. Even if the President is at his full inherent authority under Article II, he can't make law by himself; he can only sign law into being. Similar to Lopez and Morrison, Clinton v. New York dealt with the Legislature being unable to make law that is beyond the scope of Article I. But none of those cases say anything about Article II (the veto power is in Article I).

So while it is trivially true that the Court can strike down statutes when the President and Congress act in concert, you have nothing to show that the Court could use that opportunity to render an advisory opinion on the scope of Article II. I don't see in Lopez, Morrison, or Clinton v. New York any language about the inherent power of the President.

Posted by: Not A Law Professor | Jul 14, 2006 3:42:03 PM

Small correction: Morrison upheld the statute. I should have said "In Lopez, the Court is striking down ultra vires an statute."

Posted by: Not A Law Professor | Jul 14, 2006 4:02:00 PM

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