Tuesday, June 10, 2008 - Posts
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I am confused. The New York Times first reports that John McCain now agrees with the Bush administration that the president has the constitutional power to disregard FISA. Now, today it publishes a story saying Bush is alarmed he'll lose the statutory authority Congress recently gave that permits him to get around the old FISA framework. But wait-I thought Bush said he could not be bound by legislation in this area in the first place, so great were his powers as commander in chief. So, why then is he worried about whether Congress does or does not renew the temporary legislation permitting him to get around FISA? Can't he just disregard FISA no matter what Congress does or does not do? And isn't that just the legal position that McCain was supposedly signing on to a couple of days ago?
Of course, one possibility is that the administration actually won't comply with FISA even if Congress fails to reauthorize the current Terrorist Surveillance Program. Sure, it says it will be required to do so, but that's just part of an effort to pressure Congress into granting new powers. When push comes to shove, the administration will do what it did when no one knew what it was up to: just defy the laws on the books by claiming preclusive constitutional powers. But let's assume the administration is serious when it says that if negotiations on the Hill fail to result in a reauthorization, they'll be stuck with the old regime. What has changed that now makes them feel so stuck?
Is it:
1) Lawyers within the Justice Department have rejected the argument that the Constitution gives the president the power to disregard FISA and also concluded that recent legislative developments have rendered illegitimate the controversial claim that the initial Authorization To Use Military Force from 2001 superseded the old FISA regime? If so, that's a big deal, and it would be good to know how this internal legal shift came about.
2) Lawyers for the telecoms have finally balked and are no longer willing to participate in a program that is based solely on the administration's claims of commander-in-chief override power or the AUMF-supersedes-it theory. If so, it would be good to know what has caused the telecom lawyers to feel obliged to say, "No."
3) The FISA court has basically made it clear that it will make even the old regime useless so long as the administration also relies on a parallel, supersecret non-FISA surveillance program that has not been separately approved by Congress, presumably by deeming even requests under FISA fatally tainted. If so, it would be nice to know just what theory of law the FISA court is using and why the Bush administration feels the need to rely on the FISA process for some things in the first place such that it would lose something significant if it lost access to the old regime.
4) The politics of the moment have changed now that the whole supposedly secret program has been made so public that the debate over its legal underpinnings has become a campaign issue. So, even though the administration believes it has the legal power to disregard FISA and the telecom lawyers would comply with requests to do so, it simply no longer feels it can act on what it believes to be correct understanding of the law as a practical matter. But if so, what is it about present politics that are now so different?
For what it's worth, (1), (3), and (4) all seem like weak explanations to me, but this being a state secret and all, I have no idea. What I am interested in is the underlying puzzle: On the one hand, the administration is claiming preclusive constitutional authority, and we are debating the extent to which the Republican nominee shares that same constitutional philosophy. On the other, the administration is bemoaning the fact that Congress is forcing it to comply with an outdated statutory framework. How can both things be true? And if both are, what is the dynamic that makes the administration feel unable to break a law that it believes it has the legal right to break and that it has disregarded in the past?
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Like many corporate law and business law decisions, yesterday's Supreme Court decision in Allison Engine Co. v. United States ex rel. Sanders was virtually ignored by the media and blogosphere. Neither the New York Times, Washington Post, nor even the Wall Street Journal even mentioned it in their daily dispatches, choosing to focus instead on other opinions handed down yesterday. But for my government contracts practice, and my clients, this decision was of monumental importance.
The case arose out of the False Claims Act, a Civil War-era statute that provides civil liability and penalties for anyone who, among other things, "knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government." Notably, the statute contains a qui tam provision that allows individuals (called "relators") to sue on behalf of the U.S. government if they learn of such fraud and entitles these whistleblowers to a percentage of the recovery if the suit is successful. This provision was originally inserted to counterbalance a recalcitrant Justice Department that was unwilling to go after fraud. It has since launched a large and active plaintiff's bar in this area, and a great deal of litigation, too.
Yesterday, the Supreme Court narrowed two important parts of this statute considerably, by raising the bar for what a plaintiff must prove in court about a contractor's (or subcontractor's) intent, and the materiality of their statements. This is so significant because most False Claims Act cases don't involve clear-cut cases of fraud or deception. Rather, they typically turn on very granular facts. Many cases involve compliance certifications on one form or document, and requests for payments on another document, or sometimes only an "implied certification" of compliance. It would be a massive understatement to say there are thorny issues of proof in these cases.
With its decision in Sanders, the Supreme Court is making it much tougher for qui tam plaintiffs to prove contractor violations of the False Claims Act. Given the size and scope of the government contracts industry, and the amount of litigation involving these questions, yesterday's decision will likely have an effect far beyond its publicity.
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Apropos of Marty's recent FISA post, and following up on a discussion I had with Orin and Deborah a while back, I've written a newThe essay 1) describes the National Surveillance State; 2) shows how it is a special case of the Informational State—; 3) explains how the National Surveillance State arose organically out of the Administrative and Welfare State and National Security States; and 4) describes some the key constitutional challenges lie ahead.
I don't think there's any doubt that we are moving into both an Informational State and a National Surveillance State. Both major political parties have been participating—and will continue to participate—in its construction. The real question is what kind of state we will have.
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Joan Biskupic has a story today about how "much of [Justice O'Connor's] legal signature already is fading from the court." Joan generously cites me as someone "who has been tracking the fate of O'Connor precedents since she retired." She is referring to a post of mine to SCOTUSblog back in July 2005, listing almost three dozen precedents that were the most vulnerable in the wake of Justice O'Connor's retirement.
Last year, in a comment to a post by Michael Dorf on 5-4 decisions that might have come out differently if Justice Alito had not replaced Justice O'Connor, and in a post here, I republished a slightly updated list, which is limited to cases decided in O'Connor's final decade on the Court. I reiterated there that there were five high-profile constitutional areas where overruling was a serious possibility—and the court has already taken big bites out of the O'Connor precedents in three of those areas:
1. Abortion, where the court in Gonzales v. Carhart effectively overruled the standard for facial challenges in abortion cases, established in Stenberg v. Carhart (2000).
2. Race-conscious assignments and affirmative action. In last term's decisions in the Seattle and Louisville race-conscious student-assignment cases, the court severely compromised the impact of the court's 2003 decision in Grutter v. Bollinger.
3. Campaign Finance Regulation. In the Wisconsin Right To Life case, the court in effect invalidated the 60-year-old requirement that corporations and unions must use separate designated accounts (PACs), rather than general treasury funds, to finance election-related expenditures. The court, in an opinion co-authored by Justices Stevens and O'Connor, had just recently upheld that restriction by a 5-4 vote in McConnell v. FEC (2004). In future years, the court might also reconsider the basic Buckley v. Valeo/McConnell precedents that permit reasonable restrictions on campaign contributions.
4. Establishment Clause. In particular, the court could depart from Justice O'Connor's "middle-ground" position on state displays of religious expression (see, e.g., McCreary County v. ACLU (2005) (Ten Commandments displays)); and, more importantly, the court could retreat from nearly 40 years of precedents prohibiting the provision of "direct" financial aid (as opposed to vouchers) from government to religious schools and institutions. Justice O'Connor's concurrence in Mitchell v. Helms (1999) is currently the governing precedent.
5. Congress's powers to remedy discrimination under the Reconstruction Amendments, such as Section 5 of the 14th Amendment. See Tennessee v. Lane (2004).
I also noted that "[b]ecause most Justices consider stare decisis a more serious obstacle to overruling in cases of statutory construction (rather than constitutional interpretation), precedents below involving statutory construction (e.g., the Davis and Jackson decisions on title IX of the Education Act Amendments (sex discrimination)) might be more secure than many of the constitutional precedents, even if Justice Alito would not have voted the same way as Justice O'Connor as a matter of first impression."
Sure enough, last week's decisions in the two retaliation cases basically reaffirmed Justice O'Connor's decision in Jackson—and did so expressly on the basis of a strong stare decisis presumption.
Anyway, that list, again, is available over at Balkinization.
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Come this August, some of the electronic surveillance orders that were approved pursuant to the 2007 Protect America Act will begin to expire. As of now, there is no consensus in Congress on a replacement statute; therefore, as the New York Times reports tomorrow, "Congressional and intelligence officials are bracing for the possibility that the government might have to revert to the old rules of terrorist surveillance, a situation that some officials predict could leave worrisome gaps in intelligence. ... [O]fficials have been preparing classified briefings for Congress on the intelligence 'degradation' they say could occur if there is no deal in place by August."
What are these "old rules," anyway—the ones that would be back in play if there is no amendment enacted by August, and that would cause such an intel "degradation"? That would be FISA, of course—a statute that was amended at the behest of the executive many times since its enactment in 1978 and used effectively by the NSA for more than two decades. The attorney general is quoted as saying that a return to the FISA legal regime would be "unthinkable." But why?
Continue reading at Balkinization ...
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