A Stitch in Haste

"That the Framers did not intend for federal judges to roam at large in construing the Constitution and laws of the United States but rather preferred and provided for resolution of disputes arising in a ''judicial'' manner is revealed not only in the language of [Article III,] Sec. 2 ... but as well in the refusal to associate the judges in the extra-judicial functions which some members of the Convention — Madison and Wilson notably — conceived for them. Thus, four times proposals for associating the judges in a council of revision to pass on laws generally were voted down, and similar fates befell suggestions that the Chief Justice be a member of a privy council to assist the President and that the President or either House of Congress be able to request advisory opinions of the Supreme Court." [Source.]

Leading constitutional scholar Bruce Ackerman echoes my criticism of the Specter "compromise" bill that would submit the NSA warrantless wiretapping program (d/b/a "Terrorist Surveillance Program") to some absurd sort of "one-time review" by the appellate panel of the Foreign Intelligence Surveillance Court:

The administration's bill ... grants the government the power to seek authorization for its surveillance programs from the special FISA court in what would be a mockery of a judicial proceeding. The FISA judges will only hear the president's side of the argument. They will consider the NSA program in the abstract, without the discipline of case-by-case judgments. And they may issue their decision in secret.

This is essentially the "facial versus as-applied" distinction I made in this post.

Ackerman goes further:

This system makes federal judges the handmaidens of the executive branch and forces them to go beyond their limited authority to decide concrete "cases" and "controversies." If this bill becomes law, it will generate a constitutional crisis.

I was never very good with the whole "Article III court versus Article I court" distinction — FISC would appear to be an Article III court. If so, then as every law school student learns (and sometimes forgets), the "judicial power" of Article III is limited to "cases and controversies" and federal courts are forbidden from issuing "advisory opinions." Which would pretty clearly suggest that the whole "FISA review" aspect of the Specter bill is patently unconstitutional. (Whether that automatically implies a "constitutional crisis," as Ackerman claims, is another matter altogether.)

Furthermore, as Ackerman notes, the FISA judges, while all duly appointed and confirmed to other federal courts, are not so appointed to the FISC — they are unilaterally appointed to that court by the Chief Justice. This also raises some core separation-of-powers concerns.

Bottom line: The Specter bill is not only bad policy, it is also bad statecraft.

In any case, the Ackerman article is meant for lay readers — so go and lay-read it.