I blogged about the panel decision in Amnesty International v. Clapper in March, opening and closing my post with the following two paragraphs:
On Monday, the Second Circuit handed down a very important decision on standing to challenge secret surveillance programs in Amnesty International USA v. Clapper. The decision, by Judge Gerard Lynch and joined by Judges Calabresi and Sack, offers a very easy way for plaintiffs to have Article III standing to challenge surveillance statutes. The opinion strikes me as puzzling, however, and it appears to be in conflict with other Courts of Appeals cases on standing to challenge surveillance regimes. I suspect Supreme Court review is a serious possibility.
Whether you like the new decision or not, I suspect it’s not the last we’ve heard on this issue. The opinion strikes me as in pretty direct tension with cases like ACLU v. NSA, the 6th Circuit’s case rejecting standing for the NSA’s warrantless surveillance program during the Bush years. Given the importance of the issue, and the tensions among the circuits, I would suspect this case may be headed upstairs.
DOJ petitioned for rehearing, and the Second Circuit denied rehearing yesterday in an evenly divided 6-6 vote. A flurry of opinions concurring and dissenting from the denial followed, which are generally pretty strongly worded. To my mind, those opinions make the Clapper case an excellent prospect for Supreme Court review.
I wonder if this really matters, though. Much of the discussion in the opinions concerns the fact that this is a facial challenge, not an as-applied challenge. But there’s an underlying oddity that the opinions don’t mention: Facial challenges are generally frowned upon in Fourth Amendment law, and it’s not clear that the law permits one to be mounted against the FISA Amendments Act at all even if plaintiffs have Article III standing. The key case is Sibron v. New York, 392 U.S. 40 (1968), in which the parties tried to litigate a facial challenge to a stop-and-identify statute. Sibron appears to say that you can’t bring an facial challenge to a statute that regulates warrantless searches and seizures: Facial challenges can only be brought against statutes governing the issuing of warrants. Here’s the key passage from Sibron:
The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of 180-a “on its face.” We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U.S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U.S. 108 (1964); Giordenello v. United States, 357 U.S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to [392 U.S. 40, 60] embody the safeguards demanded by the Fourth and Fourteenth Amendments.
Section 180-a, unlike 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to “stop” people, “demand” explanations of them and “search [them] for dangerous weapon[s]” in certain circumstances upon “reasonable suspicion” that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. 20 New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U.S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure “is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.” Cooper v. California, 386 U.S. 58, 61 (1967).
Accordingly, we make no pronouncement on the facial constitutionality of 180-a.
Sibron explains why there is relatively little law on Article III standing to bring Fourth Amendment facial challenges to statutes. Facial challenges are generally not allowed in the first place — at least unless the case challenges a regime of issuing warrants — so we haven’t seen many battles over Article III standing to raise challenges that can’t go forward anyway. Instead, Fourth Amendment law has focused extensively on “standing” to bring as-applied challenges, which the Supreme Court in Rakas v. Illinois tells us simply folds back on the Fourth Amendment question of whether the government conduct violated the plaintiff’s own reasonable expectation of privacy.
josh says:
Prof K
Any thoughts on Kevin Drum’s (or, dare I say, Glenn Greenwald’s) thoughts here: http://motherjones.com/kevin-drum/2011/09/nsa-surveillance-program-gets-tiny-setback? Kevin admits his layman status, and perhaps you inherently address his concerns in this post. Also, I’ve kind of vowed to stay away from GG’s posts, despite the fact that we’re usually on the same page philosophically, but that doesn’t mean you have to! The chief judge’s comments quoted by Drum do seem a bit inappropriate.
September 22, 2011, 2:55 pmPLR says:
And indefensible.
September 22, 2011, 5:15 pmOrin Kerr says:
Agreed, and sadly it is not the first time Judge Jacobs has done this.
September 22, 2011, 6:00 pmGlen says:
Sure would be interesting to hear what Prof. Nicholas Rosenkranz thinks about this…
September 22, 2011, 7:47 pmArthur Kirkland says:
This is the first opinion from Chief Judge Jacobs I recall reading; this one creates a rebuttable presumption that Chief Judge Jacobs would be happier (and a better fit) presiding in Uzbekistan, North Korea, Saudia Arabia, Turkmenistan, Iran, or China.
On the substantive issue, I am growing increasing fond of the idea of governing government officials’ conduct by exposing those who infringe citizens’ rights to imprisonment. Government officials who comply with the Constitution would have nothing to fear. Those who offend would be held accountable. Chief Judge Jacobs would probably have fewer courtroom disputes to bother him.
September 22, 2011, 8:43 pmRich Rostrom says:
If I understand your explication of Sibron, the Court ruled that laws governing the issuance of warrants may be unconstitutional, but laws governing warrantless search activities by LEOs are not reviewable, only individual searches.
That seems a very strange division. The second clause is based on the asssertion that some searches authorized under such a law might be proper.
But surely some warrants issued under a law might be proper, too.
Also, it would seem that laws authorizing or regulating warrantless searches are irrelevant: the lawful scope of such searches is exclusively defined by the Fourth Amendment.
This might relate to Prof. Rosenkranz’s topic.
Is the Constitution violated when the legislature passes a law establising a defective procedure for warrant issuance, or only when a judge issues an improper warrant under that law? Sibron says when the legislature enacted.
Is the Constitution violated when the legislature passes a law establising a defective procedure for warrant issuance, or only when a judge issues an improper warrant under that law? Sibron says (by implication) when the legislature enacted.
Is the Constitution violated when the legislature passes a law authorizing improper warrantless searches, or only when a LEO performs an improper search? Sibron appears to say when the LEO searches.
September 22, 2011, 11:15 pmpublic_defender says:
Part of the problem is that Judge Jacobs takes an intellectually defensible position (even if I disagree with it) and makes it look like right wing nuttiness. Informed lawyers and judges who would reject the plaintiffs’ claims must cringe when they read this opinion.
On the substance, other courts have rejected the claims that the plaintiffs make here, but Rogers is the only judge that I know of who has deemed the claims frivolous. If any judge is an outlier in this case, it’s him. The US Supreme Court may vindicate his position on who should win the case, but I doubt that a single justice would hold that the claims were frivolous.
By using such intemperate rhetoric, Judge Rogers did a disservice to both the legal system and his cause.
It’s also a reminder to all of us who sometimes get passionate about an issue to avoid hurting our cause through excessively strident language.
September 23, 2011, 5:18 amMJ says:
If you read Judge Jacobs’ actual opinion, you will see that many posters here are misdirecting his frivolousness claim. He’s not asserting that any challenge to the constitutionality of this provision of FISA is frivolous; he is asserting that the plaintiffs and their counsel’s claims to injury and redressability are frivolous. It is clear that the private litigants here don’t like the provision; perhaps they even feel strongly that it is unconstitutional. But to get around black letter standing doctrine, they–in Judge Jacobs’ view–concocted claims about injury that are frivolous. There is “impact litigation” on both sides of the aisle, and the principal goal of such litigation is to overturn congressional and executive decisions made by elected officials–and these initiatives are always carried out by the losing side in the election against the winning side. I suppose this is all fine, but if there were no standing doctrine, nearly every law would be challenged by activist litigation groups on the left and the right.
All this is consistent with Judge Jacobs’ view that lawyers and judges like these sorts of claims because they allow them to play a role in policy matters on which they have no expertise, without any accountability to anyone. I suspect some on the left will feel the same way should a court overturn Obamacare; and many voiced the same concerns about Citizens United and Heller.
September 23, 2011, 8:52 amOrin Kerr says:
MJ,
As best I can see, the only purpose of your comment is to act out your fantasy of Judge Jacobs’ persecution, to validate your pretensions to legal expertise, to make yourself consequential rather than marginal. Ok, ok, just kidding. Seriously, if Judge Jacobs had actually said that, I suspect no one would object. But that’s not what he said. Instead, he gave his personal guess about the secret motives of the litigation, and, critically, he did so in a way that left the pretty clear impression he has a strong personal ideological dislike of the plaintiff’s claim. For those of us who think judges should be above politics, it’s a pretty damaging opinion.
September 23, 2011, 9:24 amHamdan Azhar says:
Is there a reason why the order doesn’t list the 6-6 breakdown more clearly? This is what the order seems to suggest: Carney (O), Chin (O), Katzmann (C), Lohier (O), Lynch (O), and Pooler (C) concur in denial of hearing in banc, and Cabranes (C), Hall (B2), Jacobs (B1), Livingston (B2), Raggi (B2), and Wesley (B2) dissent from denial of hearing in banc. Someone correct me if this is wrong.
If correct, however, this suggests a pretty obvious division along political lines. 6 of 7 justices who were appointed by Democrats (Obama or Clinton) voted to affirm the plaintiffs’ standing to sue the government, whereas all of the Republican nominees (by Bush 1 or Bush 2) sided with the government. I don’t know what the literature says about partisanship in the federal judiciary but is this surprising?
September 23, 2011, 9:28 amcrust says:
From Orin’s link, Chief Judge Jacobs dissenting in a different case:
Unbelievable.
September 23, 2011, 9:35 amArthur Kirkland says:
Why? Because of some PC-imposed mandate that people be slaves to “facts” or “science” or “information?” Don’t fall for the reality-based world’s devilry.
September 23, 2011, 9:52 amMJ says:
Orin:
I guess we disagree. I think what I wrote is what his opinion says. And I don’t think his opinion is ideological in a partisan political sense. It is a misreading of his opinion–in my view–to think that the problem he has with this litigation is on the merits of the constitutional claim being asserted. Yes, he expresses the view that these sorts of determinations are better left to the legislative and executive branches, and I suppose that represents a conservative judicial philosophy. But that’s not what is usually meant when one accuses a judge of political bias.
September 23, 2011, 10:29 amOrin Kerr says:
MJ,
I don’t see anything relevant to a “conservative judicial philosophy” to accuse lawyers who brought a case of just being interested in raising money and having “fantasies” of persecution. On the other hand, I see a lot that is relevant to being a conservative talk-radio host. I think we should leave talk-radio quips to Rush.
September 23, 2011, 12:05 pmMJ says:
Yes, I think we should, Professor Kerr.
September 23, 2011, 12:31 pmFriday round-up at the nclawtalk blog says:
[...] urged the Court to take up the issue. Wired News and the ACLU Lens Blog provide coverage. At the Volokh Conspiracy, Orin Kerr observes that the concurring and dissenting opinions in the case make it “an [...]
September 23, 2011, 2:03 pmArthur Kirkland says:
It appears the much-loved “conservative and libertarian” grouping was on vacation when this case was adjudicated.
September 23, 2011, 6:59 pmHow Technology Is Testing the Fourth Amendment « GEODATA POLICY says:
[...] Second Circuit Divides 6 – 6 on Rehearing Standing Case to Challenge FISA Amendments Act (volokh.com) [...]
September 27, 2011, 4:28 pm