Federal Courts Can Be a Tough Subject

Howard Wasserman at PrawfsBlawg has this post about the argument in Susan B. Anthony List v. Driehaus. Wasserman quotes this selection of the argument:

JUSTICE GINSBURG: Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness. 

MR. CARVIN: In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context. No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.

Wasserman explains why Mr. Carvin was having a difficult time with the question:

It always has been difficult to explain the distinction between standing and ripeness (mootness tends to more clearly be its own thing). And that has become worse over the past several years, as SCOTUS has ratched up the injury-in-fact requirement in its standing cases. In a pre-enforcement constitutional challenge, whether a plaintiff has suffered an injury for standing purposes necessarily includes whether the plaintiff faces a likely risk of immediate harm, which long had been the bailiwick of ripeness.

I took Federal Courts this semester and I will soon need to work through the standing/mootness distinction as I put my outline together. I considered including this selection from the Susan B. Anthony List argument as a fallback position to take if I am confronted with a set of facts that blurs the line between standing and ripeness. But I am not sure that Professor Varat will be as sympathetic to that approach on an exam as Professor Wasserman is to this approach in oral argument.

The ENFORCE the Law Act

That's the name of a bill proposed by Trey Gowdy (R - SC). The bill would give Congress and/or the Senate the ability to sue the President when the House or Senate passes a resolution determining that the President or an administrative agency has "established or implemented a formal or informal policy, practice, or procedure to refrain from enforcing, applying, following, or administering any provision of a Federal statute, rule, regulation, program, policy, or other law in violation of the requirement that the President take care that the laws be faithfully executed under Article II, section 3, clause 5, of the Constitution of the United States."

At PrawfsBlawg, Howard Wasserman takes note of this bill and concludes that while Congress may be able to give itself standing to sue, it would still seem that these questions would be non-justiciable political questions. From what little I know about the political question doctrine, I am inclined to agree.

Also, I have observed politicians like Gowdy making accusations that President Obama is abusing his power by adopting policies of nonenforcement for some time now, but this is the first legislative action on the subject that I have seen. Some may argue that this move was precipitated by Obama's statement that he would "use his pen and his phone" to act where he could, even if Congress refused to legislate. But an alternate theory is that the body of the bill has been around for a very long time, and the bill's proponents only recently settled on the title, "the Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act of 2014" (which can be abbreviated to "ENFORCE").

We may never know for sure what theory of this bill's development is correct. But it is pretty safe to say that any interesting justiciability questions this bill raises will never be heard in the courts since the bill will almost certainly die in the Senate.

The Standing Implications of the NSA's Decrease in Metadata Collection

At Lawfare, Chris Donesa posts about a recent leak that indicates the NSA is only collecting 20 percent or 20-30 percent of U.S. telephonic metadata under the Section 215 program. For background on that program -- which involves the collection of phone numbers dialed and the duration of these calls -- see here. The stories reporting the leak appear here and here (behind a paywall).

Donesa criticizes the NSA's apparent decision to reduce the amount of information it collects:

If accurate, this startling disclosure should be troubling to all sides of the debate over metadata collection. Advocates should be concerned that the collection is now so limited as to jeopardize the program’s utility in locating potential terrorist links to the United States, and that the Department of Justice, DNI, and NSA have allowed the state of affairs to decline so perilously. Critics now have substantial reason to question and even litigate the rationale for continuing the program, and industry should have heightened concern about the potential for expanded compelled collection by the government.

. . .

[I]f calming critics is the goal, the leak fails miserably. Disclosing that the scope is now so narrow fundamentally undermines the justification of collecting “all the dots.” In the oversimplified realm of the public debate, that becomes an easy and damning talking point to question whether the program even serves its purpose going forward. The disclosure will also inevitably fuel even more litigation, including questions about whether this fact should have been affirmatively made known to judges and others.

The release of this information may be more beneficial to the administration than Donesa argues. On its face, the leak gives the administration the ability to claim that it is not pervasively monitoring all phone records, which may make the program more politically acceptable.

But an even more significant consequence of the leak is the impact that this information may have on future plaintiffs' standing to sue the government over this program. The revelation that only 20-30 percent of telephonic metadata is collected gives the government a strong argument that plaintiffs lack standing to sue for rights violations that arise from this program.

In Clapper v. Amnesty International, 133 S. Ct. 1138 (2013), the Supreme Court rejected a challenge to section 1881a of the Foreign Intelligence Surveillance Act which authorized the surveillance of communications of people outside of the United States. The plaintiffs in that lawsuit were people whose work required them to communicate with people outside the United States who were likely to be monitored under this act. The Court held that the plaintiffs did not have standing to challenge the surveillance program because they could not conclude that any injury resulting from surveillance was "certainly impending," since the plaintiffs could not make enough of a showing that they would be monitored, or that any monitoring would occur under 1881a.

Moving ahead to a more recent case, in Klayman v. Obama, the District Court for the District of Columbia held that a plaintiff's claim that Section 215's authorization of bulk metadata collection likely violated the Fourth Amendment. While I analyze the Fourth Amendment holding of that case in more detail here, the court distinguished Klayman from Clapper by noting that Snowden's leaks indicated that all telephonic metadata for Verizon was being collected by the NSA. In light of this post-Clapper information about the supposedly all-encompassing surveillance program, the court held that the plaintiff's had made enough of a showing that their rights had been violated and would continue to be violated.

The NSA's recent leak may undermine the Klayman court's standing conclusion, since the NSA's collection of metadata may not be as all-encompassing as previously thought. And this may spell trouble for plaintiffs seeking to enjoin the enforcement of Section 215. Where these plaintiffs may previously have had a strong argument that their information would almost certainly collected, it now seems that the probability of this collection is in the 20-30 percent range. And this might not be enough to prove that the plaintiffs face "certainly impending" harm from the program. As a result, plaintiffs suing to enjoin enforcement of Section 215 may run into the same lack-of-standing barrier as the plaintiffs in Clapper.

While the NSA's recent leak may undermine the administration's justifications of its bulk metadata collection program to some extent, the other political and legal impacts of this leak may outweigh this negative consequence. It will be interesting to see if this revelation has any influence on courts' jurisdictional decisions in future cases.