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Friday, March 31, 2006
S. 2468 -- A New Kind of Schiavo Statute
I've written here before on how the 109th Congress is unusually obsessed with federal jurisdiction. Comes now the latest salvo, which, although it has nothing to do with Terri Schiavo (who died one year ago today), has everything to do, methinks, with Public Law 109-3 -- the statute Congress passed to provide for federal jurisdiction in the last round of the Schiavo litigation.
The bill is S.2468, introduced on Wednesday by Senator Chuck Schumer. And its most important provision is as follows:
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.
Any lawsuit filed in accordance with the bill must be filed in D.D.C., where it will be heard by a three-judge district court, with the concomitant mandatory appeal to the U.S. Supreme Court, which itself must be expedited.
Although the bill is interesting on a number of levels, what's perhaps most striking to me is that this seems a direct result of the Schiavo statute. For, although Public Law 109-3 explicitly noted that it would not serve as a precedent for subsequent legislation, this kind of case-by-case regulation of federal standing and jurisdiction is exactly what that statute portended, when it was enacted a little over one year ago.
Moreover, leaving aside the constitutionality of such case-by-case congressional involvement in the federal courts, this, just as the Schiavo statute, strikes me as very bad policy. It seems just as pernicious, to me, for Congress to effectively tell the Supreme Court that it needs to quickly decide a specific legal question as it is for Congress to effectively tell the Supreme Court that it can't decide a specific legal question. The key point, overly simplistic though it may be, is that the Court's authority over its own docket serves as an important institutional check on Congress's ability to control the Court, and bills such as this seem a big step backwards.
Don't get me wrong -- I do not object, in principle, to the remaining substantive legal fields where the three-judge district courts (and the Supreme Court's mandatory appellate jurisdiction) are extant, e.g., voting rights and redistricting cases and campaign finance challenges. There's a reason why we had them in the first place, and there's a reason why we've kept them around even in these limited circumstances.
But it strikes me as a potentially dangerous abuse for Congress to use its power in this area (three-judge district courts and mandatory appeals) to force expedited Supreme Court review of those individual legal questions that Congress, and Congress alone, has decided are important. I didn't like it when it was the conservatives and Terri Schiavo (and even they didn't use this procedure), and I like it even less when it's Chuck Schumer and Snoopgate. Congressional overinvolvement in the scope of federal jurisdiction strikes me as inherently dangerous, regardless of the politics behind it.
Posted by Steve Vladeck on March 31, 2006 at 04:30 AM in Constitutional thoughts, Steve Vladeck | Permalink
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Comments
But the bill also presents some Article III standing requirements. I don't think it deals with the effects of Lujan, and is probably unconstitutional. It seems like others agree. http://selectedinsights.blogspot.com/2006/04/dumb-legal-argument-2984.html
Posted by: Generallyclean | Apr 2, 2006 11:13:56 AM
Another question comes to mind -- if there are pending lawsuits in which challenge has been made to illegal surveillance, say in the M.D. Fla., if the billpasses does this mean the case will have to be transferred to the D.C. Circuit? And, does the type of case matter? What if it is an Americans With Disabilities or admiralrty salvage case in which a surveillance vessel conducting illegal surveillance on the ADA plaintiffs was arrested in salvage -- do both cases in ADA and admiralty have to be transferred to D.C.Circuit, just because surveillance issue has arisen? What a mess.
Posted by: Mary K. Day-Petrano | Apr 1, 2006 5:20:25 PM
I still don't see what the "injury" is.
Posted by: A federal judge | Apr 1, 2006 1:45:31 PM
Marty Lederman says:
"Instead, it's an attempt to deal with and resolve a stand-off between the political branches themselves on the most important constitutional question of our time. Without Supreme Court review -- quick Supreme Court review -- the President will win his Commander-in-Chief power grab."
Am I the only one that finds this incredibly partisan, and somewhat humorous? A stand-off between the political branches? Does it ever enter into the equation that Bush has won (or could win) the "stand-off"? Or is the only legitimate resolution of the issue, the one in which you desire? Seems to me if enough of those involved in the political process shared your views they could stop this "power grab." Why is the only way for this issue to be resolved, to force it into the courts?
Posted by: ? | Apr 1, 2006 1:33:53 AM
"It doesn't deal with only one person's idiosyncratic legal plight, and attempt to supersede a state court's resolution of that legal dispute."
OK, there's no state court's resolution, but it's a private cause of action by one person who suspects his conversation are listened in on.
That's not "one person's idiosyncratic legal plight"? OK, loss of telecommunications privacy is far, far more more important than dying of thirst but still ... ?
"Instead, it's an attempt to deal with and resolve a stand-off between the political branches themselves on the most important constitutional question of our time."
With a private cause of action?
"Without Supreme Court review -- quick Supreme Court review -- the President will win his Commander-in-Chief power grab."
Ten thousand expedited appeals to the Supreme Court?
Posted by: nk | Mar 31, 2006 7:19:46 PM
I should have read the post at Balkinization first. I'll quote Professor Lederman here in case anyone else thought the quoted text in this post was odd:
"A reasonable fear would be established by evidence that the plaintiff either has regular wire communications from the U.S. to Afghanistan, Iraq or Pakistan, in the course of paid employment involving research pertaining to terrorism or terrorist groups, or commercial transactions with a bank or financial institution in those countries."
Posted by: JP | Mar 31, 2006 2:50:54 PM
Would this really allow such a claim to be reviewed? Not having read the rest of the bill, I'm curious as to how someone will claim "a reasonable fear that such communications will be the subject of electronic surveillance...." ('How am I supposed to plot that terrorist attack now that I'm afraid of calling my al Qaeda contact?' What kind of damages do you ask for that?) Maybe a journalist concerned about his sources can claim a reasonable fear? There might be legitimate claims under this bill, but who would raise them?
Posted by: JP | Mar 31, 2006 2:36:47 PM
As always, I think Marty may have the better of this argument. To be sure, the analogy to Schiavo breaks down in the provisions for Supreme Court review, since PL 109-3 didn't require either a three-judge district court or a mandatory and expedited S. Ct. appeal. I'm still uneasy, though, about the precedent set by legislation such as this (and, in a more abstract sense, PL 109-3). It would be fairly easy as a practical matter, if not as a political matter, to dramatically restructure the Supreme Court's appellate jurisdiction to force it to focus more on certain classes of cases, even if that only produces a surge in summary affirmances/reversals. Although I, for one, would love to force the Court to focus more on cases such as those to which the Schumer bill is directed, I see an equally strong possibility that the Court's hand will be forced more toward issues I'd just as soon they not decide. :-)
Marty's right, of course, that there's something to be said for ensuring the availability of federal court review of claims that might otherwise be incapable of review, especially constitutional claims on such important questions as those at the core of the Schumer bill. My objection is far less to that than to the procedural provisions. All things being equal, I guess I'd just be happier if the bill stopped right after the standing provision, and otherwise left it to the courts to decide how best to deal with the procedure... Not because I don't like it here, but because I worry, perhaps too much, about the next time around.
Posted by: Steve Vladeck | Mar 31, 2006 10:58:37 AM
Sorry, Steve. Couldn't disagree with you more on this one. See my post on Balkinization: http://balkin.blogspot.com/2006/03/schumer-nsa-bill-and-feingold-censure.html.
Schumer's bill is not in any way, shape or form analagous to the Schiavo bill, and I think it's very unfortunate to have such an argument floating out there. It doesn't deal with only one person's idiosyncratic legal plight, and attempt to supersede a state court's resolution of that legal dispute. Instead, it's an attempt to deal with and resolve a stand-off between the political branches themselves on the most important constitutional question of our time. Without Supreme Court review -- quick Supreme Court review -- the President will win his Commander-in-Chief power grab. It's just about that simple. As you well know from the Hamdan, Hamdi and Rasul cases, the only way to get this Administration to move an inch on its assertions of war powers prerogatives -- at least so long as Congress is Republican-controlled -- is with a decree of the SCOTUS.
It's not a "case-by-case" standing bill. It eliminates all the potential current statutory obstacles to a suit challenging the NSA program, and is intended to affect the Article III problem, as well -- which would probably otherwise preclude the litigation that is now so critical.
"Congressional overinvolvement in the scope of federal jurisdiction." As opposed to what? Jurisdiction that is created out of thin air? Congressional underinvolvement (i.e., the failure to create jurisdiction, as is arguably the case under FISA as currently written)?
If you're not opposed to this procedure on the McCain-Feingold law, why would you be opposed here, where the stakes are, arguably, even higher, and the need for swift resolution even greater?
Posted by: Marty Lederman | Mar 31, 2006 10:25:47 AM
I predict that 97% of both chambers will agree with our host and this bill has the same chance as the proverbial snowball in that hot place.
Posted by: nk | Mar 31, 2006 7:30:40 AM
As Dworkin would say, this fits with the preexisting rule that most justifies our political regime: CSIE. Chuck Schumer Is Evil.
Posted by: Kirk Cameron | Mar 31, 2006 1:54:24 AM
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