Alito, NSA, filibusters, and the nuclear option

[Sanford Levinson]

Needless to say, I agree with every word that Paul says.  But I'm not
sure why our opinions are relevant.  The central question is whether the
Administration would in fact give up in circumstances where they really
believed (perhaps correctly) that absolutely vital security interests
were implicated.  The second problem with this particular point, of
course, is that there appears to be no feasible way to litigate the
point, even if one were confident in the litigation process.  Merryman
was actually being deprived of his liberty, and no one doubted that
habeas corpus would normally apply.  But no particular individual is
likely to be able to demonstrate a harm linked to the NSA program; in
addition, of course, it would take many months, if not indeed years, for
the Supreme Court to address the issue.  So in the meantime, what will
the Administration do?  The answer is to persist in their present
behavior unless and until Congress says, "you simply can't do this, and
we're prepared to do whatever is in our power, including impeachment, if
you don't stop."  This worked with Andrew Johnson, which is why his
impeachment (even if not his conviction) was absolutely necessary.  But,
of course, Congress was in the hands of Johnson's opponents.  

The most important persons in Washington right now are libertrian
Republicans like John Sununnu and Larry Craig or the non-libertarian but
concerned Arlen Spector.  (It's also fascinating to watch Mike DeWine,
in a very tight race in Ohio, move rapidly to "the left" with regard to
putting some distance between himself and the Administration.)  And were
that Bob Barr were still in the House.  If Republican libertarians move
into solid opposition, then things could become extremely interesting.
If only Democrats fulminate, then Bush will win the fight for
"approbation."  (Incidentally, the same is true with regard to legal
academics, although we are almost infinitely less important.  Scott
Gerber's apparent opposition to the NSA program is far more important,
practically speaking, than, say, Bruce Ackerman's.  The Administration
is making very effective use, on the blogosphere, of Cass Sunstein's
apparent defense of their positions.  It's obvious why they would rather
highlight Sunstein than, say, John Yoo.  So will more Republican
academics join Scott in taking the lead in opposing the Administration?
Is this creating any kind of crisis for the members of the Federalist
Society, or are they solidly pro-Bush?)  

sandy 

-----Original Message-----
From: Paul Finkelman [mailto:paul-finkelman at utulsa.edu] 
Sent: Sunday, December 25, 2005 8:34 PM
To: Sanford Levinson
Cc: Scott Gerber; lawcourts-l at usc.edu; conlawprof at lists.ucla.edu
Subject: Re: Alito, NSA, filibusters, and the nuclear option

A couple of possible responses;  first, Taney issued his opinion as
Circuit Justice took it to the full court; second, a civil war may be
different, especially if the Chief Justice is an open opponent of the
war effort and the administration.  If hard cases make bad law then
perhaps the most difficult war time situation of all (Civil War) makes a
bad precedent.  Furthermore, and here is the real point, IF habeas
corpus is suspended then the Court CANNOT interfer because the Court
cannot overrule the suspension.  It is hard to imagine how Lincoln did
not have the power to suspend HC; his suspension met all the criteria of
the suspension clause (rebellion, etc.) and since COngress was not in
session Taney's argument that only COngress could suspend HC is a bit of
an absurdity--this from the man who believed Congress could not pass
laws to regulate the territories! 

 But, this is not such a situation; we have not been invaded (at least
since Sept. 11, 2001) and there is no rebellion; the Supreme Court is
hardly in the hands of al-Queda sympathizers.  

Paul Finkelman

Sanford Levinson wrote:

>Scott writes:
>
>We can't know for certain, I suppose.  But I would be stunned if he 
>kept it up after the Court told him to stop.
>
>
>But isn't the Catch-22 this:  IF the Administration genuinely, in good 
>faith, believe that what they are doing is truly "necessary" (in a 
>strong sense, and not merely "useful in the McCulloch sense) to 
>protecting American national security, then, frankly, they SHOULD be 
>willing to defy the law, just as Lincoln defied Taney in Ex parte 
>Merryman.  The Administration could also quote Madison in Federalist 
>#40, when he conceded that the Philadelphianas clearly contravened both

>the boundaries of the congressional authorization of a convention and 
>the clear requirement of Article XIII of the existing Articles that any

>amendment be by unanimous consent of the state legislatures, that these

>defects would be cured by the "approbation of the people."  And there 
>are also Lincolnian passages in which he relied on similar popular 
>approbation, in the election process, to say yea or nay to the 
>legitimacy of his actions.
>
>For better and for worse, if one believes in "protestant" or "popular"
>constitutionalism, then one can't quickly do a U-turn and say that 
>judicial supremacy is the right tack after all.  Again, for better and 
>worse, it is very hard to figure out how to litigate the NSA conduct, 
>so Congress will not be able to dodge the issue and say "let's leave it

>up to the Court to decide."  Congress will have to behave like Brestian

>"conscientious legislators" and both demonstrate that they take the 
>Constitution and seriously AND successfully sell their vision to the 
>public so that the Administration will unable to claim popular 
>"approbation."
>
>This is a full-scale test of the meaning of American constitutionalism 
>in every sense, both the substance of statutory interpretation, 
>executive power, and the First and Fourth Amendments, and the basic 
>notion of how we in this country achieve, at least in the short term, 
>what Hart and Sacks called "institutional settlement."  Mark Graber, in

>a brilliant essay just published in Levinson & Sparrow, The Louisiana 
>Purchase and American Expansion, titled "Settling the West:  The 
>Annexation of Texas, The Louisiana Purchase, and Bush v. Gore," argues,

>I believe convincingly, that issues are settled if and only if the 
>losers give up, as they did in fact with all of the three examples in 
>the title.  The fact that sore losers like myself will loath Bush v.
>Gore and its consequences to my dying day and continue to regard the 
>result in 2000 as illegitimate is absolutely irrelevant, since I am a 
>mere nonentity politically.  Those who count accepted the legitimacy of

>Bush v. Gore on December 13, 2000, led by Al Gore.
>
>There is no reason at all to believe that the Bush Administration, 
>whose heart and sole is Dick Chency, David Addington, and John Yoo (who

>has scarcely been repudiated by the Admininstration with regard to his 
>theory of Article II powers, even if they did reject his and Judge Jay 
>Bybee's over-the-top definitions of torture), will be as gracious as Al

>Gore or as Daniel Webster and John Quincy Adams, both of whom correctly

>argued that Congress was violating the Constitution in admitting Texas 
>as if it were a territory of the US, instead of by treaty, but 
>conceded, almost literally the day after the vote annexing Texas, that 
>it (or should I say "we") were part of the Union.  The fact that 
>Clinton or Gore almost certainly would give up may be only to say that 
>neither, again for better and worse, has anywhere near the backbone, 
>stubbornness, authoritarian instincts, resolution, or whatever one 
>wishes to call it, that George W. Bush possesses.
>
>sandy
>
>sandy
>
>sandy
>  
>


--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
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