Saturday, December 31, 2005

Youngstown and the three categories

I haven't really started to study for conlaw yet, but I thought I'd point out that the discussion of Bush's NSA (possible) naughtiness hinges partially on Youngstown Steel and the three categories of
  1. President + Congress
  2. President (Congress silent)
  3. President - Congress
For my own thoughts, let me recap the Article II power argument. Before FISA, most people thought the pres could do whatever he wanted in terms of foreign intelligence wiretapping (even relating to American citizens). This is from cases like Truong and "Keith". But after FISA, we seem to have moved from Category 2 to 3. One question then is whether FISA itself is constitutional--whether Congress is trying to take away powers it can't take away.

Clinton protested against some of FISA's provisions, although he apparently abided by it. This would make FISA somewhat like the War Powers Act, that every president since Carter hates, but none of them have directly challenged. Except Bush actually challenged FISA. Anyway, so there's some history of executive arguments thinking that FISA trenches on executive power, so that the NSA taps were constitutional even if we're in Cat 3. (Congress says no, pres says yes, pres wins.)

But: did the Authorization to Use Military Force in fact put us into Category 1? O'Connor's confusing language in Hamdi says the pres can undertake acts under the AUMF that are incidental to war. So it largely depends on how you construe the wiretaps. If you call them enemy intelligence gathering, they're pretty clearly incidents to a continuing war. If you call them plain ol' wiretapping Americans, they don't seem to be war related, and are unconstitutional. Hmmm.

These args of course are only about Youngstown categories. There's also the 4th Amdt, which has generally been held to have a big "border exception" for physical transit into/out of the U.S. United States v. Ickes, 393 F.3d 501 (4th Cir. 2005). Is there a similar exception for communications that pass the border? That would be a bad idea--it would catch lots of emails and calls that aren't terror-related--but there might be. It would be unfortunate if protests against Bush's fairly limited program led to the recognition of such a huge exception. Of course, the 4th Amdt is a floor, not a ceiling--or maybe it's a floor inside the U.S., and a ceiling for international stuff? Also, one can argue whether the NSA program violated FISA even as written, shortcutting this entire discussion: Orin Kerr says that this question depends on technical facts we don't know yet.

Anyway, I'll post some sources relating to this shtufff later. Here's one thing for now: a Federalist Society argument between a conservative and a libertarian on the subject.


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