That’s Going To Leave A Mark
Ann Althouse writes the definitive smackdown of Judge Anna Diggs Taylor's decision in the NSA case. As many people have pointed out by now, even people who are very uncomfortable with the NSA program are very unhappy with the sloppy opinion that Taylor produced. It does nothing to advance the discussion of the program and frankly ignores relevant case law.
Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force are disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality. Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is “just a few pages of general ruminations … much of it incomplete and some of it simply incorrect.”
For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.
Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”
But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.
It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?
I would not want to get into an argument with Professor Althouse. She's devastatingly effective here. As she points out, this opinion is seriously counterproductive to the people who are very critical of the NSA program. It will be torn apart on appeal and weaken their position in the process. It also reinforces the notion that judicial activism is a serious problem.
By Alphonse, August 23, 2006 @ 3:43 pm
“Why should the judicial view prevail over the president’s?”
Uh, just guessing here, but how about… that’s the way our American Constituional system of checks and balances is designed to function? What do you and Ann Althouse have against our American Constituional system of checks and balances ?
By Gaius, August 23, 2006 @ 4:16 pm
Perhaps you should read all of Althouse’s piece. Which would clarify why your view is quite wrong.
By Roland Hesz, August 24, 2006 @ 6:27 am
No.. His view wrong is not wrong
Judicial view prevail over the president’s.
Of course, that same judicial view is subject to criticism, and can be overruled by a higher level court.
But the president’s view should not be above everything including law and constitution.
And to avoid plain bad judicial rulings, you have a multi level judicial system.
By Gaius, August 24, 2006 @ 6:35 am
No, Roland. Judicial rulings in our system have to be consistent with precedent. It is not acceptable to impose a judge’s opinion unless it is grounded in case law.
That is what Althouse is explaining here. She teaches constitutional law, she knows what she is talking about.
By Roland Hesz, August 24, 2006 @ 8:53 am
I agree with you, that’s why I said that it is subject to critics.
And to be consistent with precedent – if you don’t have precendents it can’t be consistent with it, and as far as I know there is some ways to turn over a precedent, thought the exact procedure I don’t know.
“It is not acceptable to impose a judge’s opinion unless it is grounded in case law.”
Except if the judge can argue that there are fundamental differences, and the precedent can’t be used as a baseline because the differences – according to news and court reports that’s a really frequent thing.
What you are telling then that the President’s view can’t be overruled, if he says red is a bad colour, then red is a bad colour and there is nothing to do about it?
Would be quite scary….
By Gaius, August 24, 2006 @ 9:04 am
That is not at all what either Althouse or I am saying here. The president is arguing he has the legal basis for this program. The judge’s job is to rule on that assertion using relevant case law as a guide. It is not the judge’s job to assert her opinion in place of the president’s opinion without using any legal basis. Otherwise it is her opinion – not the law – that controls. THAT is scary.