Balkinization  

Tuesday, August 22, 2006

Why Should We be "Boxed In" by the Constitution and Laws of the United States?

Marty Lederman

In today's Wall Street Journal, Judge Richard Posner laments the fact that the federal courts are available to adjudicate whether the President's chosen methods of fighting the war on terror are consistent with the Constitution and laws of the United States. (Thanks to Howard Bashman for the link.)

Referring to what he obviously views as the misguided decisions of the Supreme Court in Hamdan and Judge Taylor in ACLU v. NSA, Posner complains that "we are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court." He further objects that the majority of the Hamdan Court was "unsympathetic to arguments that our understanding of certain provisions of the Constitution needs to be revised to meet contemporary needs." He hopes that the Court will eventually "bow" to the President's judgment, but warns that "we cannot wait for that to happen." Presumably this is a not-so-veiled suggestion that Congress should attempt to strip the federal courts of jurisdiction to hear claims challenging the legality of the Executive's conduct.

Regardless of its merits, Judge Posner's complaint is slightly off-the-mark in one important respect: The Court in Hamdan did not rule that the President's commissions were inconsistent with an 18th-Century Constitution -- it ruled that the commissions violated statutes enacted by a 20th-Century Congress (and a treaty ratified by a 20th-Century Senate), with the approval of 20th Century Presidents. And although Judge Taylor's decision was largely based on the Fourth Amendment, the central and clear problem with the NSA program (which Judge Taylor also emphasized, albeit not as much as she should have) is that it is in violation of another statute, FISA, which was carefully enacted, over a long period of time and after extensive deliberation and investigation of past abuses, by yet another (late) 20th-Century Congress, with the approbation of two late-20th-Century Presidents.

The courts in these cases, in another words, are merely requiring the Executive branch to follow the law enacted by the political branches. Why on earth should Congress seek to strip the courts of the power to ensure that its own enactments are honored? Judge Posner does not say. (He obviously is not fond of those statutes, enacted as they were decades before 9/11/01; but if he's right that they're obsolete, why is the proper remedy not a legislative (and public) debate about whether and how to amend them to respond to modern exigencies?)

Judge Posner's principal complaint is that it is "strange" to "confid[e] so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security."

Of course, it is not "strange" at all to give federal courts the jurisdiction to adjudicate whether the President is abiding by duly enacted laws in times of war. As countless Supreme Court cases challenging Executive conduct during war will attest, that has been the ordinary course of things since the founding. What would be strange, and fairly unprecedented, would be for Congress to attempt to strip the courts of such power, and thereby allow the President free reign to mangle or ignore congressionally enacted statutes as he sees fit.

Contrary to Judge Posner's suggestion, the courts in these and related cases are not simply second-guessing the President on "issues of national security," such as by overturning his judgments as to the extent of a threat or the efficacy of an Executive response to the threat. It's not as if five Justices of the Supreme Court, or Judge Taylor, disagree with the President on the nature of the Al Qaeda threat, on how effective the NSA surveillance program would be at detecting terrorists, or at how efficient it would be to convict detainees under the President's military commissions. Indeed, there's no reason to think that the judges would not substantially agree with the President on all such factual assessments.

Instead, what these courts are doing is vindicating the judgments that Congress has made, in conjunction with the President, on questions relating to the proper balance between addressing an external threat and preserving constitutional, statutory, and treaty-based protections of individuals.

It appears not even to occur to Judge Posner that perhaps the Executive's judgments during a time of war might occasionally be less than ideal, not only with respect to preserving individual rights, but also with regard to how to best defeat the enemy -- and that the Executive's judgments will be most suspect, and least reliable, where they are made and implemented in secret, and in the heat of battle, and are not subject to the ordinary checks and balances of our constitutional system. It is conceivable, mind you, that, left to his own devices, a President might actually make poor decisions concerning how best to prosecute a war. (Just hypothetically speaking, of course.) There is, in other words, some practical value in prosecuting a war "by the books," i.e., in accord with the rule of law. Or so our "18th Century Constitution" presumes, anyway. As Justice Kennedy explained in Hamdan, the Constitution's structure of war powers stresses "the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms":
Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment. . . . If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other laws, it has the power and prerogative to do so.
[UPDATE: I should clarify that Judge Posner does not expressly advocate unchecked Executive authority. In this Op-Ed and in other places, he has proposed a new statute that would theoretically minimize potential abuses of warrantless surveillance, "without judicial intervention, by rules limiting the use of intercepted communications to national security, requiring that the names of persons whose communications are intercepted (and the reasons for and results of the interception) be turned over to executive and congressional watchdog committees, and imposing draconian penalties on officials who violate civil liberties in conducting surveillance." This is certainly a proposal worthy of serious consideration in Congress. Three questions, however: (1) Why exclude judicial review to ensure that the President at least abides by such requirements? (2) This Administration would never agree to provide Congress with "the names of persons whose communications are intercepted (and the reasons for and results of the interception)" -- indeed, they would likely contend that such a requirement is unconstitutional. Therefore either the Posner proposal would be a nonstarter (because of a veto threat), or there would be a good chance of Executive nonenforcement. (3) Until the day that Congress enacts such a law, and the Executive abides by it, what is wrong with permitting the courts to hold the President to the laws that are currently in place?]

Comments:

Still, one has to wonder when the Judicial Panel on Multidistrict Litigation transfers cases to a judge in California because "significantly more advanced action is pending before a judge already well versed in the issues," when this judge does not have the security clearance needed to view all the evidence. There were other Federal Judges in DC who had the necessary clearance to handle the case. So the cases will be consolidated, then deadlock, and years will be wasted waiting for appeals to be resolved to determine what the judge can see, how the evidence must be handled, and other matters, just because one plaintiff chose a particular venue and beat everyone else in the race to file the first case.

Whatever you may think of the rest of Specter's bill, there is something awfully sensible about transferring just the classified part of a case to a court that can resolve a single item of fact or law and then transfer the case back to the original District. If you insist on preserving the current Judicial Lottery and Rush to File First system, then some specialization in the middle of a trial is a useful innovation.
 

A good, solid contender for the stupidest thing Posner has ever written.

Strange, isn't it, that power to legislate on national-security issues is given to 535 members of Congress not chosen for their knowledge of national security?

For that matter, I missed when Bush had to pass a quiz on "National Security Knowledge" to qualify for the presidency.

The OBVIOUS PROBLEM with Posner's let's-trust-the-experts gibberish is that the "experts" don't decide, under his preferred scenario. An elected politician and his cronies decide. As opposed to splitting the decision amongst enough politicians and cronies to make blatant corruption a *little* harder to hid.
 

I admire your restraint, and good sense, in responding to Posner's nonsense.
 

All the posts here concerning the Taylor ruling have been excellent. I try to disseminate them to non-blog readers as much as possible. It is really quite amazing the kinds of impressions people are getting from just reading the news or, worse, watching it on television. The collective eye is nowhere near the ball on this one. Clarification is badly needed. Thanks.
 

There is an argument for these type of cases to be handled by specialized courts, as is done through FISA. Judge Taylor was clearly out of her depth in handling the wiretapping case. Also, a specialized court would minimize the risk of sensative information leakig. If the only courts that could possibly hear these type of cases is a FISA-type panel and the Supreme Court, many of the president's concerns would be met.

The only issue left is whether and to what extent courts should defer to the executive. Such a concept of deference, however, is certainly not from the founding of the nation, but instead a more modern concept. The case Bas v. Tingy, 4 US (4 Dall.) 37 (1800), probably the first case that could have dealt these issues, shows absolutely no concept of deferrence, but instead approached the questions presented under ordinary legal guidelines
 

Just projecting ahead a few years and trying to imagine the nature of the Senate battles over confirmation of judges to the single federal court permitted to hear and decide all issues touching on national security.

What a great political solution! The Senate goes immediately to the "nuclear option" to try to force through a panel hand-picked for their "deference" to a promised executive power grab.

Alternatively, of course, we could fill out the panel the way we do with the FISC, delegating the first round of the job to the hand-picked Chief of the very president whose executive power grab the new panel is supposed to pass on. In secret, no less.

I suppose this is what happens when you confide so momentous a political question to a branch not only not chosen for its knowledge of how such settlements are reached, but which studiously avoids analyzing them once they are.
 

If the only courts that could possibly hear these type of cases is a FISA-type panel and the Supreme Court, many of the president's concerns would be met.

To the best of my knowledge, FISA judges are not appointed because they possess any special expertise in "national security matters" (whatever that might be). They are just judges.

Posner's argument proves far too much. Most judges are not experts in criminal procedure or estates or community property or patent law, etc. The whole system would collapse if we demanded that (to say nothing of the fact that expertise is infinitely divisible).
 

I often diagree here, but the last poster had a good point - Federal District judges are often almost illiterate in many of the areas in which they have to rule, and, yet, they muddle through. My experience here is with IP cases, where the judges are often clueless. But that is likely no different in many other arcane areas of the law.

I would only disagree in that, while not expert, I expect that almost all District Court judges have a much better understanding of criminal procedure, given that they have to deal with it on a routine basis, as opposed to national security, IP, etc. Part of this comes from having a state District Court judge teach my Crim Pro class when I was in law school - he had seen it all in 10 years on the bench, and knew more criminal procedure than most attorneys practicing criminal law. Federal judges don't obviusly see the volume of criminal cases that state judges do, but I still suspect most of them see a lot more of it than they would like.
 

Umm.... federal judges don't need a security clearance to decide cases before them. There's something called Article III confirmation by the Senate that seems to take care of that. They have methods to deal with classified information, but there's no SF-86 they need to fill out to be "approved" for access by an executive-branch lackey. Them being a co-equal branch and all...
 

While Mark is correct in saying that a judge on a FISA court has no special expertise prior to becoming such a judge, the "on-the-job training" of being such a judge gives these judges the needed expertise to handle these matters in areas other than warrants, etc.
 

On the one hand, I think you may be misreading Judge Posner a bit. He does not claim that the Hamdan court ruled on Constitutional grounds; he only states that "The Hamdan decision suggests that a majority, albeit a bare majority, of the court is unsympathetic to arguments that our understanding of certain provisions of the Constitution needs to be revised to meet contemporary needs."

In my view -- and that of numerous commentators -- the Hamdan decision does "suggest" that a majority of the SCT is not receptive to the idea that the President's Article II war-time powers should be expanded from the limits previously suggested by Youngstown and other cases. And thank God for that!

This quibble aside, Judge Posner's editorial is frightening. I would far rather have some purportedly "humble" and "ignorant" District Court judge pass on the legality of the executive branch's actions -- as the Constitution and the founders so wisely intended -- than have those within the Administration (Gonzales, anyone?) or the purportedly "wise" and "experienced" members of the Congress (Senator Inhofe? Senator Brownback? Senator Robertson? and lets' not even discuss House members) pass on those actions without judicial oversight by those not dependent on the whims of the electorate (which would repeal the Constitution in a flash if it ever came up for a vote).
 

the "on-the-job training" of being such a judge gives these judges the needed expertise to handle these matters in areas other than warrants, etc.

No doubt they'll develop expertise after they sit for a while, just as they do with criminal procedure (as Bruce pointed out). I'm not sure this solves Judge Posner's "problem", since any particular judge would have to hear cases before actually having such expertise.

In any case, the same could be said for virtually any aspect of the law in these days of specialty practices. In my experience, judges who come to the bench with a criminal law background need a good deal of help with civil matters and vice versa. That's just on the procedure -- it sure would help if they were experts on substantive topics like antitrust, IP, RICO, etc., instead of having to be educated by the attorneys. If we demand such expertise, however, there's almost no limit to how many judges we'd need.

As was pointed out in response to Brian Tamanaha's post above, there's value in having "outsiders" approach these problems, especially in cases where values tradeoffs -- liberty versus security -- predominate. Insiders can become all too incestuous.
 

Its wrong to assume that expertize is desirable in a judge deciding a controversy before him or her. We want the judge to decide the case based on the arguments, facts and expert opinions that are presented to him or her by the parties. A judge with expertise threatens to be a witness that neither party gets to cross-examine, or even hear testify. That's not a good thing.
 

Its wrong to assume that expertize is desirable in a judge deciding a controversy before him or her. We want the judge to decide the case based on the arguments, facts and expert opinions that are presented to him or her by the parties. A judge with expertise threatens to be a witness that neither party gets to cross-examine, or even hear testify. That's not a good thing.

So should we just abolish bankruptcy courts and the Federal Circuit? Heck, what's the point of administrative courts, such as the tax courts, then?

I understand that expertise in a court might not be a good thing in some cases. The arguments against it here, however, are overly broad and don't determine when a specialized court is or is not a preferable option.
 

So should we just abolish bankruptcy courts and the Federal Circuit? Heck, what's the point of administrative courts, such as the tax courts, then?

I understand that expertise in a court might not be a good thing in some cases. The arguments against it here, however, are overly broad and don't determine when a specialized court is or is not a preferable option.


The words “Its wrong to assume..” were very important to my comment. In the opening paragraph of his commentary, Judge Posner remarks on the “strangeness of confiding so momentous an issue of national security” to a judiciary that is “not chosen for their knowledge of national security.” Imbedded in this criticism is the assumption that having a controversy decided by a judge with expertise over the subject matter is preferable. Responses here seem to accept that assumption and respond to the criticism with arguments about how judges may develop expertise. My point is that it is wrong to accept the initial assumption without analysis.

I don’t think I suggested in my comment that we never want a judge to have expertise. However, there are very good reasons -- namely, the ones that I mention in my prior comment -- for why having an expert judge is the exception and not the rule.

I can understand the justification for having a dedicated court -- like the FISA court -- in order to control sensitive information. That, however, is different than having expert judges. As another commentator has mentioned, the FISA judges are not chosen for any special knowledge of national security.

The justification for having expert judges, though, -- i.e., judges with special knowledge of national security -- seems less obvious to me. The judges in these cases will have to balance national security interests against individual rights. A judge with a background that affords special knowledge of national security is likely to have a pre-existing bias in favor of national security interests. I think I prefer to have the government’s case tested by the adversary system unbiased.

Maybe I am wrong, but the assumption that expert judges would be better shouldn’t pass untested.
 

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