September 06, 2007

posted by Neil Richards

"... I think any assertion that NSLs need to be regulated by a neutral decisionmaker is a step in the right direction."

Quite possibly. But that's hardly to say that federal judges are the right "neutral decisionmakers" for the job.

If not federal judges, then who? I think they're perfectly suited to play such a role. They deserve presumptive deference in such matters as there is no other institution in our society designed or otherwise naturally suited to make sure such regulations are within constitutional boundaries. That judges are human, can't be held against them.

Patrick,

Aren't you assuming away all the issues by saying that the judges are merely making sure that the regulations are within constitutional boundaries?

Orin,

Perhaps I don't understand your question, but I'm assuming judicial oversight and review have an indispensable role here in making sure First Amendment or other consitituonal values receive due consideration in a time when "national security interests" are often allowed to trump these other values and principles. This in no way diminishes the importance of, or in any way precludes, ongoing political, academic and legal debates in this area, nor does it ignore the constitutional division of labor between the three branches of government. I'm not at all persuaded by recent arguments by Waldron, (Mark)Tushnet, and others that seek to diminish the constitutional role of judicial review, and that fail to appreciate the distinct epistemic virtues of the judiciary (discussed by Lawrence Sager, and in a more philosophically sophisticated way, by Gerald Gaus). I assume there is no necessary contradiction "between the fair and democratic process of popular politics and the potential for just results offered by robust judicial constitutionalism. Constitutional adjudication embodies a distinct process that is itself fair and democratic, fair and democratic in a way that popular political institutions cannot realistically be' (Sager). And thus no doubt I also assume or subscribe to a particular conception of constitutional practice, one more or less along the lines articulated by Sager, and one in which we grant that, "Particularly in its liberty-bearing provisions, the Constitution offers broad structural propositions and moral generalities, and the judiciary has by and large accepted the obligation to fill in these general stipulations with concrete applications, to fashion workable and defensible conceptions of the Constitution's moral concepts." I thus agree with Sager that "the judiciary is particularly well structured to address [at least some] questions of political justice" (political justice being wider in scope than constitutional justice, and the latter, in turn, broader in scope than the justice of the adjudicated Constitution), keeping in mind, apropos the current political climate, that "the Constitution becomes important at exactly the point public officials and the populace they serve take themselves to have good reasons to depart from constitutional norms, and the comparative independence of judges frees them from the potentially distorting influence of public will." Furthermore, the "enterprise of adjudication" is a kind of "institutional reflective equilibrium" (a la Rawls, and then Sustein) that exemplifies the virtues of "public reason" essential to a democratic polity. To continue: "Judges are steeped in the tradition of constitutional discourse, and their job is pointed towards the evaluation of governmental conduct against the norms of the Consititution." So it is perfectly proper for the judiciary to apply rather abstract and general constitutional commitments to concrete cases, "with the concomitant obligations of generating case-spanning doctrine and moral understandings which choose among competing accounts of the Constitution's lofty norms." I agree with James Fleming, in other words, that "taking the Constitution seriously outside the courts" does not entail "taking the Constitution *away from* the courts." This leaves plenty of room for entrenching constitutional norms outside the courts.

Please forgive me if this long excursus utterly missed the point of your question.

And now I can cite what Jack Balkin (who knows so much more about this stuff than I do; Orin does too for that matter, I just happen to disagree with him) says over at Balkinization: "Orin Kerr asks why the court spends so much time talking about judicial review in the middle of the opinion. The reason, I think, is tied to the First Amendment theory of Freedman, which requires substantive judicial review of the reasons given for the restraint. The court wants to show that the standard chosen by the statute-- shifting the burden of proof and requiring that certain claims be treated as 'conclusive'-- preempts substantive judicial review under Freedman. The court is arguing that Congress cannot get around First Amendment requirements of judicial review by redefining what forms of judicial review are permissible."

In other words, I "assumed away" no more than Neil in his post, the court in its opinion, or Jack in his analysis.

Erratum: Sunstein (Cass)

Patrick: Neil justifies his call for a "neutral decisionmaker" by referencing a number of vague policy considerations: "NSLs threaten a variety of important interests, but most especially threaten the intellectual privacy of ordinary people". I'm not at all sure why we should assume that judges are working from blank slates on these. (If you're such a fan of Cass Sunstein, then why would you disregard his research on bias and judicial decisionmaking?)

When we're dealing with issues of national security, and where the task (as Neil described it) calls for judgments of balancing competing policies and interests, I'd much rather commit the issue to politically responsive branches of government.

Patrick,

I absolutely agree that judges have the job of policing the boundaries of constitutional law when the doctrines of constitutional law allow and require them to do so. I don't think anyone disagrees with that. But I took your point to be mixing two arguments: 1) what existing doctrine requires and 2) the institutional benefits as a matter of policy of having judges make such decisions quite apart from what existing doctrines require judges to do. I think it's important to keep those arguments separate. The former is binding on a district court judge; the latter is irrelevant to him.

As for Jack's comment, I think Jack missed my point: I don't doubt why the Judge felt compelled to lecture us about the importance of judges. But I don't think it has anything to do with Freedman.

-- When we're dealing with issues of national security, and where the task (as Neil described it) calls for judgments of balancing competing policies and interests, I'd much rather
commit the issue to politically responsive branches of government. --

Do a thought experiment. There's nothing to say that Congress needs to be involved at all -- why not let the executive issue the orders on its own say-so?

Or looked in the presence of enabling or limiting statute (see Campaign Finance Reform), is there to be a vehicle by which the people are to challenge legislation, other than electing different legislators?

There is a certain amount of long-term stability when multiple branches are involved on judgments of balancing competing policies and interests.

On another level, the desire for a "politically responsive solution" becomes muted ever so slightly, when a majority of the populace desires a form of government that demands conformity (communism, socialism, dictatorship). I'm not saying that the advocate of NSL's (the executive) is pressing for any of those forms of government. Rather, my point is that "political solutions" are often at odds with protection of individual rights and liberties.

As for the issue of NSL's, I hold WWII's mail censorship program as an example of an "above board" invasion of privacy; and I think NSL's, mostly due to their "secret" and "permanent" nature, are an invasion that compromises the constitution.

"There's nothing to say that Congress needs to be involved at all -- why not let the executive issue the orders on its own say-so?"

No doubt. I'd be open to assigning the issue to an administrative review panel within the executive branch. Let that be followed by limited judicial review to a specialized court, reviewing the commission's decision under highly deferential standards of review.

If the voters are unsatisfied with the results, let them elect a President who promises to be more aggressive or less aggressive.