Why Amnesty Should Lose at the Supreme Court
It’s not the job of judges to stop warrantless wiretapping.
In Monday’s case, Amnesty argues that it has suffered a real injury—not because its employees know that spies have looked over their shoulders when they communicate with surveillance targets, but because the employees know that could happen. Amnesty says its people have had to curtail certain communications and take other precautions. The Obama administration accepts none of this: Amnesty has met with no injury and has no standing, the government’s lawyers say.
If the Court holds to its modern, skeptical view of standing, Amnesty will lose. This does not mean that there is no way the 2008 surveillance law can ever be challenged. If the government prosecutes a target using information obtained from surveillance, that person will be able to argue that the introduction of the evidence would violate his constitutional rights. However, if the government avoids bringing such cases, then people who are spied on will be out of luck. That is why Amnesty wants to get into court now.
Why has the Supreme Court restricted standing over the years? Many commentators blame conservative justices. But, as I mentioned earlier, progressive justices used standing to block challenges to the New Deal regulatory agencies. Standing doctrine is too crude for achieving ideological ends. If the justices say the Sierra Club lacks standing to challenge a weak environmental rule, then the NRA loses standing to shoot down a gun-control law.
The real explanation for the rise of standing doctrine is connected with the expansion of executive power, a bipartisan effort that goes back a century. Congress created regulatory agencies because courts can’t regulate modern problems like pollution, monopoly, and financial collapse. Congress placed the agencies in the executive branch under the leadership of the president, so someone can be held accountable when they go astray. It soon became clear that Congress could not make detailed rules for the executive branch to guide its actions, because of the complexity of the problems that its agencies were asked to tackle and the speed with which they changed. This proved even more true of foreign relations, where threats so rapidly emerge, recede, and metamorphose. Discretion became an essential feature of executive power.
The executive cannot exercise discretion, however, if courts, which move slowly and lack expertise, are constantly telling it what to do. The Supreme Court has made standing harder for plaintiffs to achieve so that people cannot enlist courts in schemes to block executive actions they disapprove of. The Obama administration is fine with this. The arc of the moral universe bends toward presidential power.
In other words, in spite of the fantasy that the courts can rein in the executive branch, that branch has gained power precisely because the courts as well as Congress realized that only a strong executive branch can battle the hobgoblins of the modern world. One of those hobgoblins is al-Qaida, and surveillance is the way to slay it. None of this means, though, that we the people lack recourse when the executive branch abuses its power. If you do not approve of government surveillance of foreign communications, or you think the law lends itself to abuse, then make your voice heard on Election Day.
Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Reach him on Twitter at @EricAPosner.