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Wednesday, February 27, 2013

Lyons, Clapper, and types of constitutional challenges

In writing about standing in the context of § 1983 constitutional actions, I have argued that it is easier to get standing to challenge enforcement of a law that regulates citizens' primary conduct than to challenge a law that regulates what the executive can do in the course of investigating and enforcing those laws--that is, the manner in which the executive operates.

This explains, for example, City of Los Angeles v. Lyons. The Court held that an individual lacks standing to challenge police department policies on the use of force (there, it was a particular type of chokehold) during encounters with citizens; it was entirely speculative that the plaintiff would: 1) break some law, 2) be stopped or arrested by police, 3) have the confrontation escalate, and 4) have the chokehold applied by that officer, thus he could not show an injury-in-fact. Compare, for example, a plaintiff who wants to operate a nude-dancing bar challenging a municipal ordinance prohibiting nude dancing; he shows injury by alleging that he owns the bar and wants to have nude dancing but is prevented from doing so by the likely enforcement of the ordinance that directly regulates his primary conduct. The Court is generally more receptive to standing in the latter than the former situation, because the injury is more obvious. The Court accepts as non-speculative that a plaintiff will engage in intended conduct that may violate a direct regulation and, if he does, that regulation will be enforced against him. It is less willing to accept that a plaintiff will engage in conduct that may bring him in contact with the police and thus subject him to the police methods of enforcement or investigation.

Yesterday's decision in Clapper falls on the Lyons side of that procedural line. Section 1881a authorized certain actions by government in the course of investigating overseas misconduct. Just as it was impermissibly speculative that police would stop and choke Mr. Lyons, it was impermissibly speculative that the government would choose to record the plaintiffs' conversations or that FISC would approve that surveillance. The result, of course, is that likely no one has standing to challenge the manner in which the executive investigates or enforces the laws, unless and until a person is actually investigated and subject to those investigative methods.

Clapper is groundbreaking and seems to do something new with standing in its insistence that a plaintiff show surveillance, and thus injury, was "certainly impending." But the context of the case fits fairly neatly in ground that Lyons already had lain.

Posted by Howard Wasserman on February 27, 2013 at 04:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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Technically this part of the case determines if the plaintiff has suffered an injury that allows them to challenge the law without, at this stage, explicitly stating what would be their objection to the legality of the statute should the case proceed. We may speculate that there is a 4th Amendment claim here somewhere, and I would would claim that logically it is a 3rd party theory, but either way you will not find it articulated in the issues before the Supreme Court.

This is also a facial challenge, so there is no concrete search alleged. Rather it is the cost incurred from the (reasonable or unreasonable) fear of the search that is at issue. In fact, if the plaintiff took effective but expensive countermeasures they were never subject to a search, and therefore no rights were violated. However, they incurred a cost to avoid the violation of rights that never occurred, and it is the cost and not the non-existent violation that is the basis for standing.

If Congress passed a law saying that courts could issue search warrants on a showing of probable cause to believe that someone is a Baptist, then we would all agree that this law is unconstitutional on its face. However, the Contest clause says we have to wait until some court issues a warrant based on the new law and a search occurs. If no search occurs, or as in this case we have no evidence that any actual search occurred, then you cannot challenge a law simply because it is on the books. This case tries to manufacture standing to challenge the law without proof of a search based solely on plaintiff's fear that a search might occur at some point in the future, and concrete costs incurred because of that fear. We have not yet gotten to the part whether the law is unconstitutional because of the 1st or 4th Amendment, and that part of the argument remains academic until we get standing.

Posted by: Howard Gilbert | Feb 28, 2013 10:48:55 AM

Was this a third-party standing case? Were the plaintiffs trying to protect other people's Fourth Amendment rights? Or were they arguing that *their* rights were violated by being recorded pursuant to FISA procedures? I read the case as being the latter.

Posted by: Howard Wasserman | Feb 28, 2013 7:57:42 AM

If the plaintiffs claimed an actual violation of 4th Amendment rights this would be a Bivens action. This is more indirect. The chain runs: Congress passed an unconstitutional law. Because of the law, we have to spend money to avoid the consequences. The expense gives us standing to challenge the law, because if the courts find it unconstitutional, then we can then stop spending the money. This logic chain does not depend on the law being a violation of the plaintiffs' own constitutional rights since it is avoidance of the expense and not violation of right that drives the claim. If this works, then any private citizen can challenge almost any inconvenient law based on any theory of separation of powers, checks and balances, federalism, or other abstract constitutional theory. It eliminates the one block that currently protects our courts from a flood of litigation based on every crackpot constitutional theory. Standing serves as a useful gatekeeper even if its scope and definition is fuzzy.

Posted by: Howard Gilbert | Feb 28, 2013 12:06:20 AM

Howard: Your hypo captures what I think is the real problem with standing--it really is all about merits and whether these plaintiffs' Fourth Amendment rights have been violated. So making it this threshold jurisdictional issue both confuses issues and gives them excessive influence.

Posted by: Howard Wasserman | Feb 27, 2013 10:46:08 PM

"My hypothetical neighbor Fred is a hit man for the mob. I could reasonably speculate that the FBI is listening in on his phone calls. "

According to the latest annual Wiretap Report, the entire federal government obtained only 358 wiretaps for telephone calls in 2011. There are lots of criminals in the United States, so you would need a reason to think that Fred is one of the 358 in order to make that speculation reasonable. http://www.uscourts.gov/uscourts/Statistics/WiretapReports/2011/Table6.pdf

Posted by: Orin Kerr | Feb 27, 2013 9:34:10 PM

My hypothetical neighbor Fred is a hit man for the mob. I could reasonably speculate that the FBI is listening in on his phone calls. However, it is not a violation of my 4th Amendment rights if there is something wrong with their warrant. That is between Fred's lawyer and the prosecution. Nor if Congress passed a law that, in my opinion, unconstitutionally relaxes the standard for a communications warrant on Fred do I have standing to facially challenge that law because I expect to spend extra money buying encrypted communications so I can safely send messages to Fred about carpooling or loaning him my hedge trimmer.

Now Fred quits the mob and moves to the other side of the Detroit river in Ontario. He may or may not have links to al Qaeda. I can be sure that the FBI has no warrant to tap his home phone because it is in Ontario and under the jurisdiction of the Canadian courts. Scalia suggests that the NSA would probably get copies of the calls from the RCMP, but it appears that Amnesty International and the ACLU regard that as unlikely. I still want to call Fred up and get my hedge trimmer back.

Under the original FISA language, the NSA can intercept my cell phone call to Fred without a warrant (1801(f)(3) radio communication and not all parties are in the US), and it can intercept my wired phone call without a warrant but only if it does so in Canada (1801(f)(2) a warrant is required only if the call is intercepted less than half way across the Detroit river and therefore in the US). Under 1881a the government can establish a program of monitoring in which the location of the phone tap and type of phone doesn't matter.

However, I am still missing how the 4th Amendment got into this thing. Even though it is Fred's phone, and Fred's tap, FISA makes me an "aggrieved party" who can sue if the government under the original rules intercepts my wired call to Fred 20 feet on the Detroit side of the middle of the river. That is a statutory thing and it is a FISA rule that has no analog in the criminal justice warrant. The bigger picture is that as long as Fred is the target, I don't have a 4th Amendment complaint about how and where and under what authority the NSA monitors Fred's phone now that he is a terrorist then I had a claim based on whether the FBI had probable cause to get a criminal justice warrant when Fred was a hit man. Fred may have had 4th Amendment issues, but I am just a bystander.

Now we get to the important part. While 1881a makes the paperwork easier and more general, I am not entirely sure how the relaxed rule that allows the NSA to intercept the wired call in Detroit rather than requiring either a warrant or a tap in Ontario causes me injury. I either buy the encryption equipment or I don't. Either way, whether the FBI or the NSA or the RCMP taps the call and whether the tap is 20 feet to the US side or 20 feet to the Canadian side of the middle of the river doesn't clearly injure me. Yet that is all that the pre and post 1881a language changes.

The fact that Clapper is about the Atlantic rather than the Detroit river doesn't actually change the logic. The target is the guy overseas. The US cannot get a warrant for his home or office because it is overseas. FISA only required a warrant before 1881a if I made a wired call and the NSA intercepted the call inside the US. It is reasonable to assume that as a result, the NSA (the agency that tapped into the Soviet Air Defense phone system in Siberia during the cold war) obeyed the law and intercepted phone calls for 35 years at least 12 miles off the coast (or got a warrant and intercepted them in New Jersey). After 1881a the law relaxes the location, but if you have been doing something one way for 35 years you don't buy new equipment and establish new procedures just because Congress says it is OK to do so. You probably just keep doing what you have been doing all along. The legal permission to the NSA to repatriate its phone taps under 1881a doesn't translate into some sort of 4th Amendment claim for me.

Posted by: Howard Gilbert | Feb 27, 2013 8:47:49 PM

Orin: Fair addendum that I think fits in my framework, since the 4th Amendment is the most likely basis for a challenge to manner of enforcement. But I think the same analysis would defeat standing under other rights. So, for example, imagine Congress re-enacted the law (struck down in Dickerson) attempting to overrule Miranda. No one would have standing to mount a pre-enforcement challenge to that, because it would be impossible to allege an imminent injury that did not depend on speculation about 1) being arrested; 2) being prosecuted; 3) giving an un-Mirandized statement; and 4) having that un-Mirandized statement used against you.

Posted by: Howard Wasserman | Feb 27, 2013 5:37:12 PM

Perhaps the underlying reason is that Lyons and Clapper are both Fourth Amendment cases, and the Fourth Amendment is notoriously fact specific. You can't bring a fact-specific challenge without facts, so you need to wait until there are clear facts to bring the case.

Posted by: Orin Kerr | Feb 27, 2013 5:15:39 PM

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