Last week, three Foreign Intelligence Surveillance Act authorities expired after a watered‐down reauthorization and reform bill that had been hastily approved by the House ran into opposition in the Senate. Though the Senate ultimately agreed to a short‐term 77 day extension, the House has yet to act on it. Since the authorities are grandfathered for investigations already underway, or for potential offenses a temporary lapse is unlikely to have much operational impact, and an extension soon seems inevitable. When Congress does finally take up the issue again, this most recent compromise bill will be the baseline for further improvements—and improvements are sorely needed.
There are certainly some things to approve of in the failed compromise bill, but it ultimately falls well short of what’s necessary—and includes a lot of cosmetic tweaks designed to mollify a president outraged over the mishandling of the Carter Page investigation, without actually effecting substantive change.
Let’s review both the good and the not‐so‐good. The bill would finally put an end to the misbegotten “call detail records program” initially exposed by Edward Snowden nearly seven years ago, and preserved in a diluted form under the USA Freedom Act of 2015. Though more limited than its predecessor, which indiscriminately vacuumed up nearly all domestic call records, the USA Freedom version of the CDR program nevertheless led to the government collecting hundreds of millions of call detail records each year, based on just a handful of orders. Like its predecessors, it was both plagued with compliance problems and errors, and essentially useless operationally, as the independent Privacy and Civil Liberties Oversight Board confirmed in a recent report. Though NSA itself decided to mothball the program, the administration formally requested that the authority for it be renewed, just in case they saw a need for it in the future. Rejecting that idea, as this latest bill does, should be a no‐brainer.
There are also welcome–if inadequate–changes to the broader business records provision, also known as Section 215, which (as the name suggests) enables the government to obtain business records, or any other “tangible thing,” that is deemed “relevant” to a national security investigation. Because the bar for obtaining §215 orders is far lower than the probable cause required for a full‐blown FISA warrant, the new bill closes a potential loophole by clarifying that the authority may not be used to obtain any record that would otherwise require a full search warrant in an ordinary criminal investigation—and that this includes location information, which the Supreme Court brought under the protection of the Fourth Amendment in Carpenter v. United States (2018).
Yet this bill does not go nearly as far as Sen. Ron Wyden’s Safeguarding Americans’ Private Records Act, which would similarly require a warrant to obtain a target’s Web browsing history and other categories of particularly sensitive records. Nor, perhaps more importantly, does it address the underlying breadth of §215: The trivially low bar of “relevance to an investigation” compounded by a requirement that the FISA Court approve orders for individuals with any connection to the target of an investigation. In the now notoriously botched investigation of former Trump campaign advisor Carter Page, for instance, the FISA Court would have been presumptively obligated to issue an order for the financial or telecommunications records of anyone “known to” or “in contact with” Page, since he was the target of a foreign intelligence investigation believed to be acting as an agent of a foreign power, and all such records are defined as automatically “relevant” by the statute. In principle, that would have made the records of virtually the whole of the senior Trump campaign staff available to the FBI without any further basis for suspecting them individually,
Also in the positive column are expansions of the role of the FISA Court’s amici curiae—expanding their ability to provide the Court with an independent perspective from the government’s, and assuring them access to files and evidence needed to do their job effectively—as well as a firmer deadline for the publication of significant rulings by the Court. But these are ultimately efforts to compensate for a deeper defect in the FISA process: Unlike ordinary criminal wiretaps, FISA surveillance is normally permanently covert by default, with only a tiny fraction of those spied on every learning about it. Eliminating that back‐end notice to the target of surveillance—notice that is normally considered constitutionally necessary to make a search “reasonable”—also eliminates an important incentive to be scrupulous in seeking applications. There may often be compelling national security reasons to delay notice to individual targets, perhaps even for quite extended periods of time, but at least in the case of U.S. persons, there is no good justification for making secrecy the universal, uniform default: The government should have to make the argument once surveillance terminates. In cases where surveillance has ultimately failed to support the government’s belief that a U.S. target had acted as a foreign agent, then there will often be no compelling national security rationale for failing to disclose.
Finally, there are what I think of as the “Carter Page provisions” of the bill. These are fairly clearly calculated to persuade Donald Trump that serious reforms have been enacted which will prevent a repeat of the grossly flawed investigation of his erstwhile advisor. As one might expect, they are largely cosmetic—sounding “tough” but with little real chance of making much practical difference. Criminal penalties for misuse of FISA are increased somewhat, which doesn’t add up to much if, in practice, nobody is ever actually criminally prosecuted for FISA misuse. Even in the Page case, only one of the attorneys involved in reviewing the application faces even the slenderest chance of prosecution. FBI agents are not thinking “well, I’ll falsify an application if I risk a three year prison term, but eight is too much!” They don’t believe they will be prosecuted, and they are well justified in that belief.
There’s also a provision requiring the “attorney general” to approve in writing of investigations targeting candidates for federal office before certain FISA tools can be employed. “Attorney general” is in quotation marks there, because for FISA purposes “attorney general” is actually defined as a cluster of senior Justice Department officials who must already sign off on any full‐blown FISA surveillance. And given the narrowness of this provision, it’s not clear it would have applied even to the investigation of Page—not himself a candidate for any office.
These aren’t necessarily inherently objectionable, but they are ultimately Potemkin reforms designed to persuade an audience of one to sign an otherwise relatively weak bill.
In short, the FISA reauthorization bill qualifies as a promising start, but falls fall short of the fiery rhetoric we’ve heard lately about the need to overhaul the system. But it remains a stronger baseline than many civil libertarians would have thought possible a few years ago, and if amendments offered before a final vote address some of the shortcomings identified here, reality might actually live up to the rhetoric.
In the past two weeks governments across the United States have ordered the closure of countless businesses and in so doing ordered into idleness the workers, suppliers, and contractors whose livelihood depended on those businesses, along with many others affected in less direct ways.
Are these takings of property for public use? If so, would the Supreme Court rule that they require just compensation under the Fifth Amendment’s Taking Clause? If not, is there nonetheless a case for some such compensation, such as emergency rescue payments, as rough justice?
Those interesting questions have been aired lately at the Volokh Conspiracy, the liberty‐friendly legal blog. In one post, Keith Whittington begins by saying “I am a libertarian” before going on to argue that the “immediate crisis calls for relief, plain and simple”:
It is certainly the case that some on the left want to use the present moment to launch expansive new social programs. Those debates can wait until another day, and politicians on the left are doing no one any favors by trying to exploit the crisis by tying aid to a host of onerous restrictions or attempting to erect new permanent programs. Crises are often exploited to expand the state, and we should be vigilant in resisting such efforts.
That having been said, this is entirely different from the debates we were having a few weeks earlier about the proper scope if any of the welfare state and subsidies to business and employment:
With good reason, the government has disrupted people’s livelihoods and restricted individual activity for the sake of the common good. Even if we were to think the government has been misguided in some of the steps it has taken, the fact remains that the government has taken steps that have unavoidably done substantial economic damage.
In such circumstances, the government should compensate individuals for the damage it has wrought and relieve individuals from the unforeseen burdens that they have been asked to assume.
The government has instantly thrown millions of people out of work in what was previously a full‐employment economy. There will be unavoidable economic consequences to that, and the government can only take steps to mitigate those consequences. It should, however, act as quickly to provide financial support for those adversely affected by the societal lockdown as it has to impose that lockdown. If the government had been more fiscally responsible in the past, we would be in a better position to take the necessary steps now. But we cannot fix past mistakes by closing our eyes to current needs.
In a second post, Ilya Somin, professor at George Mason University’s Scalia Law School and a leading libertarian voice on eminent domain, looks at the question of whether the courts would order compensation for shutdowns based on the Fifth Amendment. He concludes that they mostly wouldn’t. To begin with, they would be unlikely to dispute the government’s assertion of broad police powers during an epidemic:
Perhaps more relevantly, large numbers of businesses were forcibly shuttered by state and local governments during the influenza epidemic of 1918–19, the last time the US faced a public health crisis comparable in scale to this one. To my knowledge, none of them were ever held to be takings requiring compensation.
Moreover, under the doctrine of the famous Penn Central case, courts have typically declined to order compensation over regulatory takings, even severe, so long as there was not a physical occupation of the property. (For this latter reason, owners of hotels or college dormitories pressed into service as field hospitals might be entitled to compensation.) Penn Central is a bad case, but it’s unlikely to be overruled any time soon.
So suing is not the answer. And yet:
That said, I do think the principle underlying the Takings Clause points the way towards a moral rationale for compensation, even if such compensation is not legally required. …
owners and employees of the shuttered enterprises are bearing a hugely disproportionate share of the burden of protecting the population as a whole against the virus.
Moreover, the people in question haven’t done anything wrong. They simply own and operate businesses that—in normal times—are not only innocent but actually make important contributions to the community.
I am not sure what the best way to compensate them is. But I do think there is a strong case for providing at least some substantial relief.
The framers of American government were only too well aware of epidemics as a danger to human life (here’s a list of more than 30 such outbreaks that occurred between 1763 and 1783; Alexander Hamilton and his wife Elizabeth, after both contracting yellow fever and surviving, then underwent quarantine). And American constitutional law has from the outset recognized and countenanced a “police power” in state government during true emergencies to intercept the sorts of otherwise harmless movements and actions that can turn well‐meaning individuals into vectors of physical harm to follow citizens. At the same time, as they also knew, freedom would count for little were these emergency powers to set the measure for what government can do to citizens in circumstances short of that dire urgency.
I’m grateful to Ingrid Jacques of the Detroit News for quoting me in her column on this subject yesterday:
“’We have no collective memory of going through this kind of thing,’ says Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies. ‘It’s an invasion of rights we normally wouldn’t let the government get away with.’
“We’re all getting a crash course on what exactly the government can do in times of crisis. It turns out, it’s a lot….
“… Once the virus subsides, limited‐government champions should watch whether all the regulations in effect during the threat go away, too.
“’The government must put away these dangerous weapons once the emergency is over,’ says Olson.”
For a sense of the sweeping powers governments sometimes assert in the name of quarantine, isolation and lockdown—definitely not meant as an endorsement—check this New York Times account. (It at least quotes a former NSC official who says “The American way is to look for better outcomes through a voluntary system.”)
Because courts applying constitutional law tend to treat government power as at its legitimate zenith during a “hot” emergency, and (this is nothing new) grant maximum short‐term deference to the authorities at such times, ordinarily robust constitutional rights bend at least until the immediate threat to life has passed.
Freedom to assemble and freedom to worship are central to the First Amendment, yet courts have upheld and would uphold bans on religious and political assemblies in times of epidemic. Second Amendment rights that courts would ordinarily enforce, such as to operate a gun store or get processing for a required permit, may also be suspended without a short‐term judicial remedy. Indeed, the judicial remedy needed to enforce any right may fail if the courts are closed owing to an epidemic.
True emergencies do not last. When this is over, as it will be, both the courts’ vigilance and ours must be directed toward making sure the government promptly and fully relinquishes whatever emergency powers it has flexed. We will face a body of opinion intent on pressing that exact advantage, as in this Chicago Sun‐Times column from Friday:
If we can fight a war against an enemy we can’t see or touch, we certainly could use draconian measures to fight the gun violence in our neighborhoods as well.
Watch out for this kind of thinking. We’re going to hear a lot more of it.
Bethany Austin did nothing society would reasonably call wrong. She received, without asking, sexually explicit images that her fiancé’s paramour sent to a shared cloud account. She quietly called off the engagement.
That’s where the story should have ended. But her former fiancé decided to spread a hurtful and untrue rumor that he had ended the relationship because Ms. Austin was crazy and refused to cook and clean for him. To clear her good name, Ms. Austin wrote a letter to her friends and family explaining what really happened. She attached some of the images as proof. Now the ex‐fiancé and his paramour are using Illinois’s “revenge porn” law to punish her for speaking, and the state is happily obliging.
Illinois law makes it a felony to disseminate sexual images that a reasonable person would know are meant to remain private and would or should know that the subject did not consent to the dissemination. This law is the most expansive in a nationwide legislative effort to combat the grotesque practice of “revenge pornography,” where a jilted lover maliciously spreads private images far and wide after a break‐up. Unlike other states, Illinois law is not limited by the intent of the person disseminating the images.
Under the First Amendment, a law that discriminates based on the content of speech is unconstitutional. Private parties can still sue for defamation. These suits are hard to win when the offending speech is about matters of public concern—like politics, celebrities, and news stories—rather than private matters, like malicious slanders about your neighbors’ children. This public/private distinction doesn’t matter in criminal law.
The government can also regulate the time, place, and manner, of speech as long as the law applies equally to all speech. In Reed v. Town of Gilbert (2015), the Supreme Court held that regulations on when and where signs could be displayed may have been constitutional, but a sign code with different rules for religious and political signs was unconstitutional.
Additionally, laws can regulate unprotected speech—including threats, obscenity, and incitement to violence—but if the law deters a significant amount of protected speech in addition to the unprotected speech it targets, then it is unconstitutionally “overbroad.”
Responding to the complaints of the ex‐fiancé and his paramour, Illinois charged Ms. Austin under the revenge porn law. She moved to dismiss the criminal charges against her, citing the First Amendment protections for her speech. The trial court found the law unconstitutional, but the Illinois Supreme Court reversed.
Cato, joined by DKT Liberty Project, has filed an amicus brief supporting Ms. Austin’s petition to the U.S. Supreme Court, arguing that the Illinois court incorrectly distinguished between private and public speech and that, in any event, the state law is not a content‐neutral time, place, and manner restriction, and is overbroad.
The Supreme Court will decide whether to take up Austin v. Illinois later this spring.
Plenty of misinformation is circulating about the COVID-19 pandemic, and that can lead to impatience about or even hostility toward free speech. Would we be better off if the government stepped in to restrict or penalize false reports? Such restrictions would not be unknown in time of epidemic. The city of Newark, N.J. recently threatened to prosecute persons who make false statements about the outbreak.
In a fine new piece, Greg Lukianoff of FIRE (Foundation for Individual Rights in Education) points out that free speech helps bolster resilience to threats like the virus, in multiple ways.
To begin with, the looming crisis with COVID-19 is far worse than otherwise because of the repressive state policies of the Chinese Communist Party (today, China announced that it is expelling reporters from the New York Times, Wall Street Journal, and Washington Post, and will not even let them work in Hong Kong.) Specifically:
Since at least Jan. 1, China enforced severe social media censorship of hundreds of terms relating to the virus, many of which concerned the failures of China’s leadership in controlling the outbreak. Because people in China didn’t have access to information about the virus, they didn’t know to take extra precautions, allowing it to spread faster, all the while preventing the world from preparing its response during the crucial first weeks of the outbreak.
In closed societies like China, government officials have the power to stop the free flow of information if they believe it poses a threat of any kind, either real or imagined; and in authoritarian regimes, like China, the leaders of countries often see anything that might embarrass the country in the eyes of the world as a threat. By contrast, if the initial outbreak had happened in the United States, where the government has comparatively little legitimate power to control what citizens say, it’s doubtful that the disease would’ve gone unnoticed.
Despite the inapt metaphor often applied, Lukianoff argues, an arena of free expression does not really function as a “marketplace of ideas” in which competition works to drive out peddlers of falsehood the way a market for goods tends to drive out peddlers of lamps that don’t light. In the idea business, there are people, institutions, and movements that prosper for the longest time selling total junk. Hence the observed failure of the hope for “the good ideas to ever finally defeat and drive from the earth bad ideas.” The difference is that in systems controlled by the government, like China, those who operate the control switch can cut you off from those trying to reach you with the truth. “Freedom of speech gives you a fighting chance to know the world as it really is.”
Lukianoff’s further and subtler point is this. The free venting of false notions on an ongoing basis, together with the study of false notions circulated in the past, gives us crucial information about the human psyche — what people are prone to believe, and how if ever they might come to be talked out of it — and about the particular landscape of false beliefs we must face in this world right now. It is “the lab in the looking glass.”
Both for scientific reasons and for our success as a democratic republic, we need to know more, not less about the ideas in our fellow humans’ heads. I call it my “Iron Law”: It is always important to know what people really believe, especially when the belief is perplexing or troubling. Conversely, in the overwhelming majority of scenarios you are not safer or better off for knowing less about what people really think.
The “lab in the looking glass” metaphor can also explain a whole lot more of the First Amendment than the Darwinian marketplace of ideas.
For the rest, click here.
Congressional Democrats seem to be warming up to the legislative veto. If so, it would mark a welcome breakthrough in regulatory politics.
But first: What’s a legislative veto?
Basically, it’s a way for Congress to stop a regulation in its tracks. From 1932 to 1975, Congress included 292 of these veto provisions in laws that created regulatory agencies. These vetoes came in many flavors. Sometimes, it took a majority of both the House and Senate to kill a regulatory action. Other times it took passage in only one of the chambers. Less frequently, a legislative veto could be imposed by a single congressional committee.
Though employed infrequently, these provisions operated as “a central means by which Congress secure[d] the accountability of [regulatory] agencies,” according to Supreme Court Justice Byron White. Regulatory agencies feared the legislative veto and, therefore, honored objections registered by lawmakers.
Alas, the Supreme Court nixed the legislative veto in 1983.The problem, according to a majority of Justices, was that these measures had the effect of law, yet they didn’t result from the legislative process set forth in the Constitution—that is, passage by both chambers and the president’s signature.
Thirteen years later, Congress revived the concept, albeit in a lesser form, when President Clinton signed the Congressional Review Act (“CRA”). Under the act, lawmakers have a window of time to vote down new regulations. Unlike the original legislative veto, however, CRA “resolutions of disapproval” require the president’s signature.
Obviously, a sitting president is unlikely to sign a law that repeals one of his or her administration’s own rules. The upshot is that the modern legislative veto is most effective when there’s been a changeover in the party that occupies the presidency—typically, the new boss is eager to overturn rules passed by the old boss. During the first months of Trump’s term, for example, the Republican‐controlled Congress vetoed 15 rules issued late in Obama’s second term.
This is not to say that the CRA is useless for the party that doesn’t occupy the Oval Office. To the contrary, passing a CRA sends a powerful political message. It concentrates the president’s attention—and, by extension, that of the media and public—on the regulatory measure at issue. In a time when most policy flows from an alphabet soup’s worth of regulatory agencies, a CRA resolution serves the salutary purpose of forcing elected officials to pay attention to the rules being churned out by non‐elected officials.
Congressional Republicans understand this. President Obama had to veto at least five CRA resolutions of disapproval during the 114th Congress (S.J. Res. 8, S.J. Res. 22, S.J. Res. 23, S.J. Res. 24, & H.J. Res. 88). At least three more legislative vetoes were passed by a Republican‐controlled House or Senate. (H.J. Res. 37, H.J. Res. 118, & S.J. Res. 28). And GOP lawmakers introduced many more throughout Obama’s tenure.
Congressional Democrats, by contrast, have been far less willing to employ the Congressional Review Act against a Republican president. According to my review of the Thomas database, a Democrat‐controlled House or Senate passed only one legislative veto during the George W. Bush administration. That measure, moreover, was politically anodyne—it passed the Senate on a voice vote. Simply put, Democrats never played hardball with the legislative veto, unlike Republicans.
The Democrats’ inaction is puzzling, given that the legislative veto cuts both ways. Put differently, CRA resolutions apply just as readily to de-regulatory action as they do to regulatory action. Why would Democrat lawmakers reject an effective check?
In an insightful article from last Summer, congressional scholar Philip Wallach offered an answer. According to Wallach, Republicans have foolishly branded the legislative veto as anti‐regulation, which leads to two results. First, Democrats deny themselves use of the Congressional Review Act. Second, and more generally, it’s “significantly harder to fashion bipartisan compromises that favor the first branch.”
I mostly agree with Wallach, though I’m a bit more bipartisan in my fault‐finding. I think our contemporary politics are so impossibly Manichean that either side’s knee‐jerk reaction is to do the opposite of what the other side is doing, even if such a reflexive response is counterproductive.
That’s the bad news. Now for the good news: Progressive lawmakers seem to be getting over their illogical rejection of the legislative veto. In late January, the House passed H.J. Res. 76, which would block a controversial student‐aid rule promulgated by the Education Department.
The White House took note—last week, it “strongly” objected and promised to veto H.J. Res. 76 were it to reach the president’s desk. By my count, this is the first time a Democrat‐controlled chamber of Congress has played rough with the legislative veto. I’m not saying I favor the Democrats’ policy ends, but I love their means.
There are other encouraging signs. Twice, Senate Democrats have forced roll call votes on divisive CRA resolutions during Trump’s first term. (S.J. Res. 63 & S.J. Res. 50). Many more such resolutions have been introduced.
Admittedly, it’s too early to tell whether congressional Democrats are truly embracing the full arsenal of legislative checks on executive action. I am, nevertheless, hopeful these examples reflect a trend.
There is precedent for Democrat leadership doing an about‐face on an institution that they once had spurned (mistakenly) as anti‐regulatory. In 1981, President Reagan unilaterally created a powerful management tool over the administrative state, known as White House “regulatory review.” For years, progressives were upset, because they believed that such review must be inherently de-regulatory. Yet many progressives changed their mind in 2001, when then‐professor (and current Supreme Court Justice) Elena Kagan wrote a blockbuster article describing how the Clinton White House had leveraged regulatory review for progressive ends. Kagan’s key insight was that both parties can play the game.
Let’s all hope that congressional Democrats are coming to a similar realization about the legislative veto. The Framers separated the powers of government to protect individual liberty from an overbearing state. For too long, Congress has remained passive while the president achieves an unhealthy concentration of power over domestic policymaking. It’s well past time for Congress to reassert itself and re‐balance the separated powers. To this end, it would be a welcome start if congressional Democrats overcame their irrational distaste for the legislative veto.
When it comes to the Supreme Court, it’s a fool’s errand to prognosticate. Take, for example, my post from last week.
Back then, I’d “read the tea‐leaves” of the Court’s refusal to review Baldwin v. United States. Long story short: Baldwin had been the perfect vehicle for taking on the famed Chevron doctrine of obsequious judicial “deference” to an agency’s interpretation of the law. By passing on the case, I’d speculated “that Chevron reform is on the [Court’s] backburner.” To reach this conclusion, I had inferred much from Justice Gorsuch’s silence.
Well, it took a week to prove me wrong.
This morning, in a “statement” to an order with which he agreed, Justice Gorsuch went out of his way to announce that “Chevron [deference] has nothing to say about the proper interpretation of the law before us.” Again, there was no reason to bring this up.
He then proceeded to explain why the lower court was wrong to rely on the Chevron doctrine. For starters, the government expressly disavowed deference. Despite this concession, “the [appeals] court proceeded to uphold the agency’s new rule only on the strength of Chevron deference.”
Gorsuch further noted that the controversy entailed criminal sanctions and that deference is disfavored in this context.
Finally—and by far of greatest doctrinal importance—Gorsuch said the following:
And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?
Here, Justice Gorsuch is getting at the crux of the problem with the modern leviathan. Now that policymaking flows primarily from the executive branch (rather than Congress), it follows that every presidential election initiates a tectonic shift in the federal regulations that affect every aspect of the economy and personal conduct. In turn, these endless flip‐flop‐flips are abetted by the Chevron doctrine. Gorsuch is implying that, at some point, these vacillations, per se, become unreasonable. At this point, Chevron would be unavailable.
Justice Gorsuch concluded by noting the Court does not suffer from a “lack of concern” over these issues. Which is basically the opposite of what I said last week, though I’m happy to be wrong.
What does it all mean? Notwithstanding last week’s misfire, I’m again going to channel Carnac the Magnificent. From my vantage point (this week), it doesn’t appear as if the Court wants to take on Chevron directly; rather, the Court seems to be open to narrowing the doctrine.
To this end, Justice Gorsuch indicates some potential limits. For example, Chevron might be denied where the government forsakes it, or where criminal sanctions apply. While these would be welcome reforms, Gorsuch lends tantalizing hints of a much bigger limitation, one that would profoundly change the administrative state for the better. Namely, he suggests that Chevron may be unwarranted where the government’s interpretation ushers in the umpteenth reversal in a major regulatory policy.