NSA Spying and the Supreme Court

As I noted in an earlier post, I’m supportive of Bob’s legal argument that the President’s NSA surveillance program is illegal and unconstitutional. (My level of certainty on this: moderate). But for me this doesn’t settle the matter. There’s a separate question: What should the Supreme Court do about it?

For me, this is the hard but all important question. In Baker v. Carr, the Court suggested (in so many words) that justices may want to avoid resolution of a constitutional question if, for example, there is a significant chance another branch might ignore its decision. The reason for this seemingly weak-kneed approach to constitutional adjudication is straightforward. The Supreme Court, a tribunal of nine geriatric lawyers, doesn’t have much muscle. It can’t arrest a recalcitrant President. It relies on the force of its mystique as the oracle of our fundamental law and its soft political power to confer public legitimacy on political branch actions. That’s generally enough to compel the grudging respect and deference of Congress and the President. But in extraordinary times, its possible that a headstrong President convinced of the rightness of his mission, and backed by popular support and a waffling Congress, might simply ignore the Supreme Court. If that happens too often, the Court risks losing its power to command. And a disrespected Court that is repeatedly ignored is far, far worse for the long-term protection of liberty than a Court that occasionally ducks the wrong fight.

So what should the Court do about the NSA surveillance program?

There are seven red flags counseling caution:

  • First, early polls suggest the program seems to be popular with the public (although, admittedly, this may change).
  • Second, the actual tangible harm these programs pose to individuals is rather slight.
  • Third, Congress to date seems willing to go along with the program.
  • Fourth, these programs are difficult to detect: Secret surveillance programs are just that—they are instituted in the shadows by relatively small, committed cadres of spies.
  • Fifth, they respond in part to fears of a catastrophic risk: the possibility, however remote, of a nuclear terrorist attack on American soil.
  • Sixth, some surveillance, such as mass data profiling, appear nearly impossible to undertake under standard interpretations of statutory surveillance warranting procedures.
  • Seventh, reasonable people can disagree about the wisdom of this kind of surveillance.

    Given these six variables: popularity, slight immediate harm to individual citizens, congressional acquiesence, secrecy, high stakes, difficulty complying with current law, and reasonable policy arguments for executive policy, there’s a good reason to think the administration might ignore a Supreme Court that orders the President to take surveillance programs offline.

    What should the Court do then if presented with a legal challenge?
    Here’s one obvious alternative: It might simply leave the question to lower courts for the time being. The Court doesn’t have to take every constitutional challenge that comes its way. Lower courts have passed on the scope of the President’s foreign affairs authority to conduct warrantless national security surveillance—without Supreme Court review. (See, for example, United States v. Smith, 321 F. Supp. 424 (C.D. Cal. 1971)).

    If the Court stayed above the fray, lower courts would likely disagree on the merits of the President’s arguments. The administration would press ahead, citing the line of lower court precedent in its favor. But another, competing line of precedent would remain—casting doubt on the President’s actions, raising the cost of the program to the executive, and giving support to his political opponents. At a later date, those decisions might be affirmed when the risk of presidential resistance has faded (perhaps due to a change in administration or a change in control of Congress).

    But the Court might press against the President in areas where the President is on less secure ground: Indefinite detention of American citizens as enemy combatants without a civil trial is one area where the President’s legal arguments are weak, the harm to individuals is large, public opinion isn’t wholly on the President’s side, and congressional acquiesence isn’t a given. A Supreme Court opinion on this point might bolster political will against executive power.

    The Court might also encourage private resistance to the surveillance program by taking appeals on collateral issues–such as the scope of the state secrets abstention doctrine, which counsels in favor of dismissing claims in which “state secrets” are central to determination of liability. As George Washington University’s Orin Kerr has noted, the administration is likely to invoke the doctrine in civil litigation against telecommunications companies. Narrowing the doctrine will expose telecommunciations companies to greater risk of civil liability for handing over its data–deterring perfunctory corporate cooperation with the NSA.

    Should the Supreme Court follow this route–or something like it?

    Absent a change in the permissive political climate on the surveillance issue, I reluctantly tend to think yes (Degree of confidence: low).

  • Why the Cost of the GOP’s Medicare Rx Program Will Rise

    Republicans are boasting that their Medicare drug plan costs less than had been forecast. (As I’ve discussed elsewhere, that is hardly due to efficient program design.) Yet at the same time, Republicans are demonstrating why the cost of the program will keep growing until it exceeds all expectations.

    In April, the Bush Administration changed the rules so that when plans drop drugs from their formularies, the change cannot take effect until the next open enrollment period. Before that, seniors could enroll only to see their plan quickly drop coverage for the drugs they use the most. Though nice for seniors, the new policy will increase the program’s cost.

    This week brings news that Republicans are considering another costly change. Seniors who don’t enroll by today have to wait until the next open enrollment period, which begins November 15. If they eventually enroll, they will be assessed a penalty equal to 1 percent of their premiums for every month they waited. From May to November is six months; thus the minimum penalty will be 6 percent of one’s premium. This penalty is the only part of the program that works like real insurance: the longer you wait to enroll, the higher your expected medical expenses, and therefore the higher your premium.

    Fearful of treating seniors like adults in an election year, Republicans reportedly want to soften that penalty. In monetary policy, backing down from such committments is called time-inconsistent behavior, and it wrecks the credibility of central banks. Reneging on the late-enrollment penalty would certainly wreck the credibility of future efforts to contain costs by preventing seniors from gaming the system. Seniors would reasonably conclude that since Congress wimped out on past threats, it will wimp out on future threats too.

    Every perceived failing of this program will lead to “patches” that further gouge taxpayers. That process has only begun. Republicans are leading the charge.

    Media Bias?

    Two consecutive stories on NPR’s “Morning Edition” Friday took very different approaches to the issue of medical risk and scientific proof. First Snigdha Prakash reported on a new study showing that heart problems from Vioxx can last up to a year after you stop taking the drug. She quoted only critics of Vioxx and gave no indication that there might be another side to the story. She noted that Merck has won three trials and lost three so far; she didn’t remind us of the famous quote from Merck’s highest-profile loss:

    Jurors who voted against Merck said much of the science sailed right over their heads. “Whenever Merck was up there, it was like wah, wah, wah,” said juror John Ostrom, imitating the sounds Charlie Brown’s teacher makes in the television cartoon. “We didn’t know what the heck they were talking about.” (Merck Loss Jolts Drug Giant, Industry, August 22, 2005, The Wall Street Journal)

    In the next story Joanne Silberner reported on concerns that four California women “had died after taking the two-drug abortion pill combination, Mefipristone, sometimes called RU486, and Misoprostol….The deaths appeared to be a horrific side effect of the drugs.” But Silberner immediately noted that “it’s not likely to be that simple.” She quoted experts who cautioned against jumping to conclusions. She noted that the numbers were small. We need to know much more before we could assume there was a problem with these abortion drugs.

    It was a good example of careful, cautious reporting. But why are journalists seemingly much more cautious in reporting medical risks involving abortion than in reporting other kinds of risks? There are plenty of critics of the “junk science” involved in the Vioxx stories; why aren’t they interviewed in Vioxx stories? The numbers were small in the Vioxx study, as in the case of the abortion drugs, but that fact was dismissed in one report and emphasized in the other.

    Cato’s Jerry Taylor noticed something similar in a Wall Street Journal column 11 years ago (January 3, 1995; not online). He noted that the Journal of the National Cancer Institute

    caused quite a stir by publishing an epidemiological study suggesting that women who have abortions are 50% more likely to develop breast cancer than women who do not….”Not so fast,” countered epidemiologists; a 1.5 risk ratio (as epidemiologists put it) “is not strong enough to call induced abortion a risk factor for breast cancer.”

    Taylor agreed that a 1.5 risk ratio is below the appropriate level of concern. But he wondered why “the same risk ratio that was so widely pooh-poohed by scientists as insignificant and inconclusive when it comes to abortion was deemed by the very same scientists an intolerable health menace when it comes to secondhand smoke. Actually, that’s not quite true. The 1.3 risk factor for a single abortion was significantly greater than the really hard to detect 1.19 risk ratio for intensive, 40-year, day-in-day-out pack-a-day exposure to secondhand smoke (as figured by the EPA).”

    Taylor worried that too many people fail to understand statistical probabilities or assume that correlation equals causation. He also wondered whether even scientists are susceptible to a political bias against smoking or for a woman’s right to choose. How much more true that must be for journalists.

    Topics:

    NSA: Coda

    Let me make two brief and (I hope) final points in response to Roger Pilon’s post of earlier today.

    First, Roger asserts that the executive and legislative branches would not be “co-equal” if Congress is permitted “to restrict the president’s powers, as with FISA.” “Congress,” he adds, would then be “supreme, the president its mere agent.” Not true. Before any restrictive measure can become law, it must be passed by Congress and signed by the president. FISA was of course signed by President Carter. Neither successive presidents nor successive legislatures are required to re-validate previously enacted, unexpired statutes. Moreover, FISA was implicitly re-signed by George W. Bush, who helped craft the FISA amendments that are included within the PATRIOT Act and prescribe surveillance warrants.

    Second, Roger notes that Congress can always avail itself of the “power of the purse … and simply cut off funds for projects.” My response is threefold: (1) A constitutional regime that would allow Congress to eliminate a project altogether, but not restrict a project, is quite simply incoherent – especially if the project arises, as Roger insists, out of an inherent presidential power. (2) The NSA surveillance program is secret to all but a few members of Congress. Accordingly, Congress might have to de-fund the entire NSA in order to pinpoint and de-fund one program, the scope and function of which is mostly unknown. (3) Even if Congress could de-fund the program itself, that would throw the baby out with the bathwater. Republicans and Democrats alike conjecture that much of the NSA program may be necessary and effective, albeit illegal, in combating terrorism. The responsible remedy is not to de-fund an essential program, but either to change its implementation to comply with the law, or change the law to authorize the program.

    Border Enforcement without Reform is Doomed to Fail

    The news media are playing up President Bush’s proposal, to be unveiled in an Oval Office speech tonight, to send National Guard troops to stop illegal immigration across our 2,000-mile border with Mexico. The real news is that the president and the Senate are about to work together to pass real immigration reform, including a new temporary worker program and a path to legalization for the millions of undocumented workers already here. The Cato Institute laid out the intellectual argument for such an approach in two major studies, Willing Workers and Backfire at the Border.

    The large majority of workers here illegally have come for the same reasons immigrants have come to our shores throughout our history, to build a better future for themselves and their families–and to help us build a stronger U.S. economy in the process. Our economy continues to create hundreds of thousands of new jobs each year for low-skilled workers, while the supply of native-born Americans willing to fill those jobs continues to shrink. The American workforce is getting older and better educated. Yet our immigration system has no legal channel for a peaceful, hardworking person from Mexico or other countries to enter our country legally to fill those jobs.

    Two decades of ramped-up enforcement have failed to fix the problem. We’ve increased spending on border enforcement 10-fold, we’ve built walls for miles into the desert, and we’ve raided hundreds of U.S. business from coast to coast. Yet the number and inflow of illegal workers just keeps growing. We need an immigration system that reflects the realities of American society and the American economy. A program to legalize millions of workers would allow the U.S. government to concentrate its enforcement on the real criminals and terrorists trying to sneak into our country.

    It’s good news that President Bush and a majority of Senators seem to understand that enforcement without reform is doomed to fail.

    Can We Negotiate with Odious Regimes?

    It appears that in the case of Libya, the answer is yes.

    After more than twenty years, the US is restoring normal diplomatic relations with the regime of Muammar Khaddafi. Well before the Iraq War, the US government had opened a diplomatic dialogue with Tripoli to work toward dismantling its WMD programs. The two reached an agreement, and have now normalized relations. This notwithstanding the fact that Mr. Khaddafi’s government remains rather ugly and reprehensible in ways too numerous to count.

    It’s a lesson we should keep in mind, particularly with respect to certain other US relationships in the news today.  We can negotiate with odious regimes.

    And sometimes, good can come of it.

    NSA déjà vu again

    With his usual precision, my colleague Bob Levy, in his latest NSA post, has zeroed in on the basic question I put to him: “How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government?” He grants that the president has inherent powers; but so does Congress, he adds, and if Congress expressly restricts the president’s powers, as with FISA, that “is persuasive when deciding whether the president has overreached.”
     
    Not so fast. The problem with that is that the branches are then no longer “co-equal.” Rather, Congress is supreme, the president its mere agent—precisely the point I made in our recent debate when I spoke of Congress’s post-Vietnam rewrite of the Constitution in foreign affairs, much as the New Deal Congress did with domestic arrangements.
     
    Bob points more precisely, however, to the Necessary and Proper Clause as the source of Congress’s power over the president. But that clause—to reduce a very complex issue to its essence—was written, in the context of the Articles of Confederation, to enable Congress to give effect to its and the other branches’ enumerated powers. As Chief Justice Marshall said in McCulloch v. Maryland (1819), the clause authorizes means that are “really calculated to effect any of the objects entrusted to the government,” like surveillance for national security purposes. When that power is used “improperly” to restrict the inherent power of another branch, serious separation-of-powers issues arise.
     
    Congress does have a power to accomplish that end, however: It’s the power of the purse. It can simply cut off funds for projects—yet even here there are separation-of-powers questions that courts have never resolved. Given that the public seems to support the NSA program by 2 to 1, however, Congress is not likely to do that. This leaves us with Fourth Amendment issues, and as I said last time, that’s the business of the courts.
     
    Two quick final points on Bob’s most recent post: First, the “parade of horribles” he presents—detention, tribunals, etc.—raises complex treaty and international law issues that are quite different, requiring separate analysis. Second, the animating sentiment at the time of the founding may have been fear of executive power—return of the king. By the time of the framing, however, after 11 years of experience with self-government, the Framers had a far more subtle understanding. As Madison put it in the Virginia ratifying convention, “The sword is in the hands of the British King. The purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.”