The NSA wiretapping controversy and statutory interpretation guidelines

I've been slowly working my way through the DOJ's 42-page white paper justifying the constitutionality and legality of the NSA's warrantless electronic surveillance of Americans.  It's certainly written forcefully, in the sense of marshaling cases and history to make its primary arguments that (1) the President's Commander-in-Chief power (Article II) provides an independent basis for supporting the NSA's activities; (2) even if that didn't, Congress' Authorization for Use of Military Force adequately supports the NSA's activities because warrantless surveillance of the enemey is part and parcel with fighting wars; (3) FISA, read properly, doesn't forbid these activities; (4) but even if it did, the AUMF supersedes FISA; and (5) in case you have any doubt that that's the right way to read the AUMF and FISA, you should because to do otherwise would invite a constitutional conflict between FISA and Article II.

Much has been said about points (1)-(4) (see, e.g., this post by Marty Lederman, linking a letter by law professors and others that anticipates and rebuts the points; but see this post by Tom Smith, arguing that the DOJ argues the Article II point persuasively).  What I found especially interesting about the DOJ letter is the heavy reliance on point 5.

It's true that the Court has held:

[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is "fairly possible," see Crowell v. Benson, 285 U. S. 22, 62 (1932), we are obligated to construe the statute to avoid such problems.  See Ashwander v. TVA, 297 U. S. 288, 341, 345-348 (1936) (Brandeis, J., concurring); United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909).

INS v. St. Cyr (2001).  The DOJ would thus appear on solid ground in arguing that the AUMF and FISA should be read in a way to avoid posing the constitutional problem.

However, this canon of statutory interpretation assumes an ability on the part of Congress to undo what it perceives to be an erroneous interpretation by the Court.  For example, in McNally v. United States (1987), the Court interpreted the federal mail fraud statute so as to preclude public corruption prosecutions, which had long been predicated on the charge that a public official had deprived the public of its right to his/her "honest services."  Congress responded in 1988 by enacting 18 U.S.C. s 1346, which reads: "For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."  Because the Court is engaging in statutory interpretation, not judicial review, its decision can be overriden by another Congressional statute.

Thus, if Congress wants to force the constitutional question avoided by the Court when the latter relies on this canon of statutory construction, it can do so by reenacting or amending the statute in question.  Notably, the same alignment of forces that enacted the original law is all that is necessary to reenact or amend -- that is, a simple majority of each House, plus the President.

Notice, however, that this is not true in this particular instance of interpreting the AUMF and FISA.  If the constitutional issue is the scope of Article II and we interpret the AUMF and FISA so to avoid the constitutional question, that has the effect of maximizing the Executive Branch's power at the expense of Congress, which had, after all, sought to limit the President's power through FISA.

But wait, can't Congress reenact FISA and/or the AUMF to make clear whether it intended to permit the NSA's warrantless surveillance?  It could, but the catch is that if it made clear that it did NOT intend to permit the surveillance, we would expect the President to veto that new bill.  Congress could override the veto, but it would take 2/3 of each House, not a simple majority.  Thus, even if a simple majority of each House had not in fact intended the AUMF to supersede FISA, that simple majority would be unable to effectuate its intent, because it would now take a supermajority to override a veto.

All this goes to say that there is a very good reason not to apply the usual statutory interpretation rule in instances where the potential constitutional conflict involves Article II, because the President's veto power unbalances the assumption underlying the rule of construction.  Thus, even though, like co-guest blawger Prof. Ku, I'm still on the fence about whether the President *could* ultimately be given the power to have the NSA engage in warrantless surveillance, I think there is a very good reason to defer that question until we are certain that Congress in fact intended the President to have such power, notwithstanding the usual rule of statutory interpretation.