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Wednesday, January 25, 2006

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.

Posted by Tung Yin on January 25, 2006 at 03:05 PM in Constitutional thoughts | Permalink


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i think its wrong to have wiretapping that goes against our constitution having our rights to privacy. in the constitution Amendment 4 it says The right of the people to be secure in their persons, houses, papers, and effects our HOMES our rights and wiretapping is invading our privacy.

Posted by: ashley | Apr 5, 2006 11:04:45 PM

I thought Tung's post made a nice point, but doesn't it prove a bit too much? Every time Congress re-enacts a statute, it faces the possiblity of a presidential veto. If Tung's point is right, doesn't it mean that the constitutional avoidance doctrine of statutory interpretation would never be invoked in the context of an Article II claim? Or am I missing something?

Posted by: Julian Ku | Jan 25, 2006 10:26:00 PM

Very interesting post, Tung, followed by a number of excellent comments.

With apologies for the shameless plug, it happens that I'm in the process of putting on the final touches of a paper currently entitled "Constitutional Avoidance in the Executive Branch," which attempts to think hard about whether, and when, the executive branch should employ the avoidance canon. (It's really remarkable, by the way, how little there is in the literature about statutory (as opposed to constitutional) interpretation in the executive branch and/or administrative agencies. There's an important recent piece by Jerry Mashaw and one from the late 1980s by Peter Strauss, but that's about it.) On the basis of the things I've been thinking about in the context of that paper, I would offer two thoughts:

1. It seems to me that the fact that courts routinely employ the avoidance canon does not necessarily establish that executive branch actors should do the same. This turns out to be a really complicated issue, but one part of it is that, if you examine the reasons the Supreme Court embraced the avoidance canon in the first place (particularly the canon that favors avoiding hard constitutional questions, not just actual unconstitutionality), they tend to reflect concerns specific to the federal judiciary -- viz., worries about countermajoritarianism and the issuance of advisory opinions. Those concerns obviously don't apply in the executive branch. Thus, the executive branch's mere citation to cases like St. Cyr won't do; we need to think about whether executive use of the avoidance canon is justifiable on independent grounds. (I argue in my article that there might well be such independent grounds.)

2. Tung's point in his post is that the self-dealing quality of DOJ's use of avoidance in the course of defending the NSA spying program should be especially troubling because overcoming the executive's construction would presumably require a veto-proof supermajority, not just a bare majority. I've been thinking a lot about this issue recently, but I'm not yet convinced that it condemns the executive's use of avoidance in situations like this. First, the bare fact that the avoidance canon is used here in a self-dealing way should not be a problem. Indeed, institutional self-dealing is intentionally endemic to our system of divided government, as Madison made clear in Federalist 51. Second, the judiciary often uses avoidance in a self-dealing fashion, as in cases like St. Cyr where the Court used avoidance to resist jurisdiction-stripping by Congress. Third, although the executive's self-dealing use of avoidance is made more powerful by the prospect of the presidential veto, the *judiciary's* self-dealing use of avoidance is made more powerful by virtue of the fact that the courts generally have the final say on both statutory and constitutional questions within their purview. In other words, the constitutional structure does not entail perfect symmetry; each branch has certain unique advantages. I don't see why those features of the constitutional design should doom executive use of avoidance in a self-dealing fashion, *as long as* we conclude (per my point 1 above) that there is a valid theoretical justification for the executive branch's use of avoidance in the first place.

Apologies for the ridiculous length of this comment, but I'll close with this: None of what I've just said should be construed as a defense of DOJ's use of avoidance in its defense of the NSA spying program. My only point above is that executive use of the avoidance canon is not necessarily inappropriate in self-dealing situations. Even accepting that point, however, the fundamental problem with DOJ's use of avoidance in the NSA spying context is the one Marty has identified: the avoidance canon is only triggered in circumstances of statutory ambiguity, and here DOJ is inventing ambiguity where in fact there is none. The other problem is that DOJ is using avoidance in service of a grossly exaggerated, apparently unprecedentedly broad vision of the President's Article II powers. But these problems just show that DOJ has misapplied the avoidance canon in this context; they don't do anything to undermine executive use of avoidance in a self-dealing fashion in cases where the avoidance canon legitimately applies. (Or at least so I argue in my paper.)

Posted by: Trevor Morrison | Jan 25, 2006 8:44:12 PM

Fair enough!

Posted by: Marty Lederman | Jan 25, 2006 5:10:28 PM

Steve, I think that's a good point.

Marty, I wrote "would thus appear to be on solid ground" not as an indication of my assessment of the argument, but rather a rhetorical attempt to set up my subsequent analysis. It thus appears that I did so ineffectively. . . . (My bad)

Posted by: Tung Yin | Jan 25, 2006 5:06:28 PM

Very good point, Tung. It's interesting, isn't it, that of the two cases they cite for the avoidance canon, one (St. Cyr) involves reading a statute to constrain the Executive so as to avoid a serious due process problem, and the other (Egan) doesn't really state the avoidance canon at all; instead, Egan says: "[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs." Here, of course, Congress has "specifically provided otherwise," in no uncertain terms, in FISA. Any "ambiguity" arises from the Administration's unorthodox construction of the AUMF as *trumping* FISA.

Even apart from that, I think you give DOJ far too much credit when you suggest that "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."

The avoidance canon is applicable *only* where (i) the statute is genuinely ambiguous; and (ii) the constutional question is genuinely serious. As I've tried to demonstrate, in the blog and the letter, *neither* predicate is satisfied here. Moreover, as our letter points out, the one thing everyone agrees on -- apparently even DOJ -- is that construing the AUMF to permit this program *would* raise a serious and novel Fourth Amendment question. Thus, the avoidance canon cuts exactly the other way, *against* inferring an authorization to the Executive, as in Endo, 323 U.S. at 302-03, and as in Scalia's concurrence in Hamdi, 542 U.S. at 574, where he would read the AUMF itself narrowly to avoid a serious constitutional imfringment on citizens' liberty.

Posted by: Marty Lederman | Jan 25, 2006 5:00:20 PM

Tung -- I echo Dan's sentiments, to which I add one of my own: Might the concern you identify also be couched as avoiding one constitutional question in favor of another? Put another way, if we frame the issue as a conflict between (1) the authority that the AUMF vests in the President through the Commander-in-Chief power, and (2) Congress's authority to place statutory limits on the President's Commander-in-Chief power, wouldn't any "avoidance" argument not fly on the ground that, by avoiding one constitutional question, you're implicitly answering another one?? Is that a fair way of re-conceptualizing your point?

Posted by: Steve Vladeck | Jan 25, 2006 4:02:32 PM

Tung, this is a very interesting point. I just taught the canon of constitutional avoidance in class today and we had some discussion about its rationale: chiefly as a way to allow democratic politics to proceed in cases of statutory ambiguity. But your analysis adds a valuable wrinkle to that canon, and its justification.

Posted by: Dan Markel | Jan 25, 2006 3:47:02 PM

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