A Possible Way to Get a Supreme Court Ruling on the Constitutionality of FISA:
One frustrating aspect of debates on Presidential power and Article II is that it's so hard to get such questions squarely answered by the courts. The executive is normally in the position of choosing whether to make an Article II argument, and it can simply decline to make the argument. But I wonder — does the Protect America Act change that? I may be way off, but it seems to me that the Protect America act just might give private parties a way to raise the constitutionality of FISA all the way up to the Supreme Court.
Imagine a telecommunications provider really doesn't like the new Protect America Act and decides he won't comply with it. Under the Act, the provider can challenge whether the government's effort to ensure compliance with the Act is unlawful. So the provider brings such a challenge, and makes the following argument: the government's directive is "unlawful," the provider argues, because FISA and the Protect America Act it modifies is an unconstitutional infringement of executive power that violates Article II. Thus a directive that is part of this unconstitutional statute has no force of law.
Oddly, this argument would put the Executive in the position of defending the constitutionality of FISA and the Protect America Act. The Executive would need the statute to be constitutional because it's the only reason the directive would be enforceable by the FISA court through contempt sanctions.
Now the case comes to the FISA court, which has two choices. If it rules that FISA and the Protect America Act are constitutional, then the provider can appeal to the FISA Court of Review; if the FISA Court of Review agrees that FISA is constitutional, the provider can take the case directly to the Supreme Court. At that point, the Supreme Court must squarely address whether FISA and the Protect America Act exceed article II or whether they are constitutional statutes to which the Executive is bound.
Alternatively, if the FISA court or FISA court of review conclude that FISA as modified by the Protect Act exceed article II, then they would have to strike down the very statute under which they are operating. But because all the FISA orders go through that court, that presumably means the whole FISA process would come to halt. At that point the Justice Department would need to decide whether to defend the statute: the government could either not appeal the decision and go without the enforcement of the Protect America directive (which seems a difficult position to take politically, but is at least possible legally), or else it could appeal the case and itself bring the constitutionality of FISA to the Supreme Court.
Am I right that this mechanism is a way to settle the Article II question, most likely through a U.S. Supreme Court ruling? One possible wrinkle is severability: I gather the government would try to make a narrow argument that the directive portion of the Protect America Act is constitutional, and would not try to defend the constitutionality of FISA as a whole. But the provider would be in the driver's seat as to what arguments were made: the provide could argue that you have to take all of FISA at once, and at the very least it would force the Supreme Court to look squarely at the question. And it would only take one provider who refuses to comply with the directive and is willing to litigate the issue all the way to the Supreme Court.
That's my thought, at least. What am I missing? (Thanks to "cbolt" for the comment that made me think of this. Also, I altered the title of the post to make it more accurate.)
Imagine a telecommunications provider really doesn't like the new Protect America Act and decides he won't comply with it. Under the Act, the provider can challenge whether the government's effort to ensure compliance with the Act is unlawful. So the provider brings such a challenge, and makes the following argument: the government's directive is "unlawful," the provider argues, because FISA and the Protect America Act it modifies is an unconstitutional infringement of executive power that violates Article II. Thus a directive that is part of this unconstitutional statute has no force of law.
Oddly, this argument would put the Executive in the position of defending the constitutionality of FISA and the Protect America Act. The Executive would need the statute to be constitutional because it's the only reason the directive would be enforceable by the FISA court through contempt sanctions.
Now the case comes to the FISA court, which has two choices. If it rules that FISA and the Protect America Act are constitutional, then the provider can appeal to the FISA Court of Review; if the FISA Court of Review agrees that FISA is constitutional, the provider can take the case directly to the Supreme Court. At that point, the Supreme Court must squarely address whether FISA and the Protect America Act exceed article II or whether they are constitutional statutes to which the Executive is bound.
Alternatively, if the FISA court or FISA court of review conclude that FISA as modified by the Protect Act exceed article II, then they would have to strike down the very statute under which they are operating. But because all the FISA orders go through that court, that presumably means the whole FISA process would come to halt. At that point the Justice Department would need to decide whether to defend the statute: the government could either not appeal the decision and go without the enforcement of the Protect America directive (which seems a difficult position to take politically, but is at least possible legally), or else it could appeal the case and itself bring the constitutionality of FISA to the Supreme Court.
Am I right that this mechanism is a way to settle the Article II question, most likely through a U.S. Supreme Court ruling? One possible wrinkle is severability: I gather the government would try to make a narrow argument that the directive portion of the Protect America Act is constitutional, and would not try to defend the constitutionality of FISA as a whole. But the provider would be in the driver's seat as to what arguments were made: the provide could argue that you have to take all of FISA at once, and at the very least it would force the Supreme Court to look squarely at the question. And it would only take one provider who refuses to comply with the directive and is willing to litigate the issue all the way to the Supreme Court.
That's my thought, at least. What am I missing? (Thanks to "cbolt" for the comment that made me think of this. Also, I altered the title of the post to make it more accurate.)