Is Retroactive Telecom Immunity Unconstitutional?
posted by Frank Pasquale
I first became interested in Congressional grants of retroactive immunity in the context of health law–when medical residents sued the AMA on antitrust grounds for establishing the “match system,” Congress rather swiftly quashed the litigation. Glenn Greenwald has tirelessly covered the issue in the context of telecoms and the NSA spying scandal. Over at the ACLU blog, he asks: is retroactive telecom immunity unconstitutional? Here’s a precis of his case against immunity:
[The] strongest constitutional objection to telecom immunity is that it constitutes a usurpation by the Congress and the President of the “judicial power” which the Constitution assigns to the judicial branch. . . .
Several of the claims asserted by the plaintiffs in the telecom cases are constitutional in nature — that telecoms have enabled violations of the Fourth Amendment and other constitutional rights of their customers. It is axiomatically true that no statute, such as the one Congress just passed, can authorize constitutional violations.
Greenwald refutes the optimism of anyone who thinks that Congress, and not the courts, should be the chief guardian of Fourth Amendment guarantees. The question will soon become: will events of 2003-2008 someday share a place in the American consciousness with the Alien & Sedition Acts of 1798? or the Japanese internment?
UPDATE: Here is a response to Greenwald from Howard Wasserman.
August 15, 2008 at 12:02 am
Posted in: Constitutional Law
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Responses (3)
Howard Wasserman - August 15, 2008 at 1:20 am
Unfortunately, no. Congress can change applicable federal substantive law whenever it wants to, here by providing a new affirmative defense against liability. And Congress can do so retroactively or as to pending cases, so long as it makes its retroactive intent clear. Congress cannot reopen final cases or undo final judgments, but it has not done so here. Congress cannot act as a judicial body reviewing a court’s decision in a particular case, but it has not done so here.
I agree that retroactive immunity is a terrible idea and we will look back on it with historical shame–as a policy episode.
Orin Kerr - August 15, 2008 at 1:22 am
[The] strongest constitutional objection to telecom immunity is that it constitutes a usurpation by the Congress and the President of the “judicial power” which the Constitution assigns to the judicial branch. . . .
That’s a pretty seriously bad argument, isn’t it? While it may be that a statute can’t authorize a constitutional violation, I am not aware of a constitutional principle that there *must* be a judicial remedy for a constitutional violation.
Brett Bellmore - August 15, 2008 at 7:21 am
Congress can’t, by legislation, make the unconstitutional constitutional. But that’s not what retroactive telecom immunity is doing.
Bad policy, but not all bad policies are unconstitutional.
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