Reason Magazine - Staff

Putting the Gloves On

info@reason.com (Mark Moller) — Thu, 01 Jun 2006 15:00:00 EDT

The expected face-off between the Supreme Court and the president over National Security Agency surveillance is like a mismatched prize fight. In one corner, a chief executive, clad in a flight suit, surrounded by Secret Service agents with itchy trigger fingers. In the other corner, nine nebbish lawyers (or five, if you assume, as I don't, that Justices Scalia, Thomas, Roberts, and Alito are knee-jerk Bush yes-men).

It's a match the Supreme Court seems doomed to lose. Yes, the NSA's domestic surveillance program violates the law. But when confronting a damn-the-torpedoes president, the Court needs muscle to enforce its will. Imagine if President Bush balks at a Court order to axe the NSA program. If our feckless Congress doesn't impeach, the Court is helpless—and its authority over the president irreparably damaged.

What's the Court to do? Allow me to float a modest proposal, inspired by the sweet science: the "rope-a-dope."

"Rope-a-dope," for non-boxing fans, was the key to Muhammad Ali's 1974 comeback victory over heavyweight champ George Foreman, the storied "Rumble in the Jungle." The Rumble, fought in Zaire, was also a mismatch. The 25-year-old Foreman, unbeaten with 40 wins under his belt, was favored 7-1. But 32-year-old Ali—older and wiser—shocked the world. He spent the first seven rounds against the ropes, deftly parrying Foreman's blows. When Foreman tired, Ali pounced in the eighth round and, with a swift left-right combo, dispatched the champ.

The Supreme Court can mimic Ali by staying on the ropes and wearing out the president. Here's how:

1. Float like a butterfly. The president wants the Supreme Court to uphold the NSA program or, barring that, order lower courts to duck the issue. The Court doesn't have to play along. Its jurisdiction is a matter of choice. And it can refuse to hear NSA cases, leaving lower courts to hear challenges as they see fit.

What then? The administration would press ahead with its surveillance, as it does when lower courts disagree about the validity of run-of-the-mill regulatory programs. (Government lawyers politely call refusal to honor divided lower court decisions "intracircuit nonacquiescence.") But without Supreme Court protection, the administration would face a tide of litigation in hostile jurisdictions. That increases the costs of the NSA program, draining strained Justice Department resources.

2. Sting like a bee. The Court can simultaneously foment resistance to unlawful surveillance by hearing smaller-stakes issues. Here are three suggestions:

First, narrow the "state secrets privilege," which requires courts to toss out lawsuits that involve national security secrets. The privilege is a shield for AT&T, Verizon, and other companies dragged into court for cooperating with the NSA. But this judge-made doctrine can be narrowed. And exposing these companies to lawsuits would frustrate NSA efforts to recruit corporate spy-partners.

Second, revisit Branzburg v. Hayes, the decision that says reporters can be forced, on pain of jail-time, to reveal leakers. While the Court dodged an opportunity to reconsider Branzburg in the Valerie Plame scandal, other cases are percolating through the courts. Expanding the privilege will embolden leakers, making it harder for the president to conceal home-turf snooping.

Finally, the Court can threaten to trim the executive's "communications privilege" (the term for presidential power to conceal internal White House debate). If the Court considers the state secrets privilege, its opinion could reach beyond that narrow issue, indicating the Court's willingness to back congressional subpoenas of the President and his key aides' disputed approach suggested by some courts in the D.C. Circuit. The message to the president: Go it alone and watch judicial recognition of your special privileges evaporate.

On each of these privilege questions, the political costs of presidential resistance to court orders outweigh the expected gains—putting the Court in charge. And, together, these low-level confrontations might do what winner-take-all fights over high constitutional principle can't: Cow the president, by threatening him with the specter of hemorrhaging legal privilege, interminable lawsuits, leaks, and subpoenas unless he buys peace at the bargaining table with Congress.

The prize? The chance at a democratically agreed-on framework of modern security law—one that balances security and accountability better than unchecked presidential willfulness.

Is this a sure shot? Not even close. But as Ali knew, in tough fights, great fighters don't listen to the oddsmakers.

What Was Scalia Thinking?

info@reason.com (Mark Moller) — Tue, 14 Jun 2005 00:00:00 EDT

The verdict in Gonzales v. Raich last week was a stunning victory for federal power, and it came with an unusual endorsement. The Court upheld Drug Enforcement Agency prosecution of sick women who use medical marijuana to treat symptoms of their illnesses. Siding with the DEA, six justices held that the Commerce Clause of the U.S. Constitution (which gives the federal government the power to "regulate Commerce...among the several States") allows Washington, D.C. to regulate purely local conduct when that activity is targeted as part of a "comprehensive" scheme of regulations. The Court held that it's irrelevant if the regulated activity is confined to just one state.

What baffled many conservatives was the concurring opinion by one Antonin Scalia, who sided with big government against a sane interpretation of the Commerce Clause. It was a surprising vote for the justice who once edited the deregulation-inclined Regulation Magazine (now published by the Cato Institute).

Or was it?

Actually, no: Careful observers of Scalia could have spotted this vote coming a mile away.

Unlocking Scalia depends on knowing something about Scalia's background, and something his grand constitutional theory.

First, background. Scalia came to the bench predisposed to look out for the interests of "comprehensive" federal regulatory programs, like the DEA's. He served as the head of the Department of Justice's prestigious Office of Legal Counsel (OLC), which advises agencies about the scope of their powers. His time there plainly had an impact on him: Today, he is known to hire clerks who have spent time working at OLC. Scalia's approach to administrative agencies—his belief in giving them a lot of leeway (in legalese, "deference") when they apply law to fact—is consistent with the institutional outlook of a former executive branch lawyer.

But it's unfair to paint Scalia as a simple executive branch stooge. Sure, his background may predispose him to sympathize with embattled agencies. But he votes against the President, too (see both his dissent in Hamdi v. Rumsfeld, where he castigated the Bush Administration for ignoring American citizens' right to habeas corpus, and his revolutionary vote to upend the Federal Sentencing Guidelines in United States v. Booker).

A complete picture of the mind of Scalia must also take into account his theory of judging, laid out in a 1989 University of Chicago Law Review essay entitled "The Rule of Law as a Law of Rules." In it, Scalia professes his dislike for rulings that give future courts broad discretion. That dislike colored his vote in Raich.

Scalia's basic philosophy of judging is one of judicial restraint achieved by deciding cases, where possible, according to clear "rules" rather than vague standards. "When," he says, "I adopt a general rule, and say, 'This is the basis for our decision,' I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my...preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle."

Thus, he writes, good judges should read the Constitution in a way that constrains future courts to a mechanical menu of decisions.

Scalia's preference for rules carried the day in Raich. Remember: Before Raich, the Court's Commerce Clause cases asked judges to brake Congress when it tries to regulate local conduct that doesn't "substantially affect" interstate commerce. Yet, deciding when conduct "substantially affects" commerce is hardly a mechanical exercise. Taken seriously, it requires hard calls and may yield unpredictable results.

Scalia himself made this point in "The Rule of Law as a Law of Rules," where he expressed "hope" that the Court would give up efforts to restrain legislation under the so-called "Dormant Commerce Clause," which asks courts to restrain state laws that burden interstate commerce. As he explained, deciding whether state laws "affect" interstate commerce "to an excessive degree" is a "standardless" inquiry.

And give credit where credit is due: Scalia's reading of the Commerce Clause in Raich is pretty clear. It tells lower courts they should avoid inquiring whether regulated conduct "affects" "interstate commerce," when Congress targets that conduct as part of a detailed regulatory scheme. That's easy for courts to apply, because it guts the Commerce Clause like a fresh mackerel.

What should conservatives make of Scalia's approach to constitutional interpretation? Here's one big problem: Scalia's brand of legal conservatism, in its quest for certitude, loses sight of what our constitutional system is all about. Consider: Is the American Constitution—with its baroque checks and balances, conceptually difficult system of "dual" sovereignty, and decentralized, fractious judiciary—well suited to promote predictability above all else? Hardly.

What's the Constitution good for, then? Think liberty. It's a quaint value in the eyes of many legal mandarins, but one whose promotion is evident on the face of the Constitution. Filled with open-ended clauses that inspire endless debate, the Constitution invites litigation. Much of that litigation targets the government, since the broadest clauses are also those that set limits on what government can do. And that's by design: In the hands of puckish Americans and occasionally bold judges, the Constitution raises the costs of government's business, making America more difficult to govern. And liberty benefits. After all, a country in which officialdom is constantly hen-pecked by litigious citizens must, of necessity, rely first and foremost on private ordering.

No doubt the temptation to contain our disorderly Constitution, by removing the messy, litigious parts, is strong for those, like Scalia, who equate law with rules. But, in the end, that urge is itself lawless. Scalia condemns judges who enact their preferences at the expense of the law as it has been declared. Perhaps it's time to look in the mirror.