Congress Intelligence Surveillance & Privacy

Article III Problems with Appellate Review in the Leahy Bill?

Orin Kerr
Wednesday, July 30, 2014, 4:26 PM
I haven't waded much into the details of the various FISA reform proposals, but I find myself puzzled by the appellate review mechanism in the new Leahy bill on FISA reform.

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I haven't waded much into the details of the various FISA reform proposals, but I find myself puzzled by the appellate review mechanism in the new Leahy bill on FISA reform. In particular, I'm not sure the constitution allows Congress to tee up legal questions to the Court of Review and Supreme Court based on the certification standard in the statute, at least without some substantial restrictions.
Section 401 of the new Leahy bill allows for judicial review of FISC decisions using a certification procedure after the FISC grants an application.  Here's the language allowing the first stage of review from the FISC to the Court of Review:
After issuing an order, [the FISC] shall certify for review to [the Court of Review] any question of law that the court determines warrants such review because of a need for uniformity or because consideration by [the Court of Review] would serve the interests of justice.
And here's the language allowing the second stage of review from the Court of Review to the Supreme Court:
For any decision issued by the court of review established under subsection approving, in whole or in part, an application by the Government under this Act, such court may certify at any time, including after a decision, a question of law to be reviewed by the Supreme Court of the United States. . . .
The Supreme Court may review any question of law certified [above] by the court of review established under subsection (b) in the same manner as the Supreme Court reviews questions certified under section 1254(2) of title 28, United States Code.
I'm not sure Article III allows this, though. Federal courts lack the power to decide cases unless the justiciability requirements of Article III have been met. Using a certification procedure doesn't change that requirement. See California Medical Ass'n v. FEC, 453 U.S. 182, 193 n. 14 (1981). As I understand the Leahy bill, it envisions that after the FISC has issued an order, when there is no application actually pending, the FISC can act sua sponte to certify "any question of law" to the Court of Review. And after the Court of Review answers the certified question, it can then in turn certify "a question of law" for the Supreme Court.
Isn't that calling for an advisory opinion? There's no application pending at the time of the appellate court decision, and there's no limitation on what issues can be certified for the higher court. Instead, the procedure presents the Court of Review or the Supreme Court with an abstract legal issue. By statute, there will be adversarial briefing. The special advocate will argue one side and DOJ will argue the other side. But it seems rather divorced from a case or controversy.
I gather the thinking is that if the Court of Review or Supreme Court disagrees with the FISC's legal analysis, the FISC is expected to act on its own to amend or revoke any orders that depended on whatever abstract legal question the higher court addressed. And I understand the goal: It's an attempt to overcome the lack of an adversarial process by giving lower courts a way to bring the case upstairs. It's well-meaning, but I'm not sure Article III allows it.
I can think of a few ways that the bill could be amended to try to deal with these concerns.
First, a section could be added expressly directing the FISC to conduct a review of orders in place when a certified decision is handed down. The section could order the FISC to revoke or amend any order that relies on the new interpretation of law. Second, the certification standard could make clear that the certification is limited to legal questions that are outcome-determinative to some aspect of the order issued, not just any legal issues that strike the FISC as interesting. I'm not sure these would solve the problem entirely, but perhaps they would help.
Another approach would be to require the entire application to be sent up to the appellate court, with the FISC merely articulating recommended legal issues for the Court of Review to address rather than certifying abstract questions.  This way, the appellate court would always have de novo review of the whole application.  As a practical matter, the appellate court would likely limit its review to the issue flagged by the FISC.  But as a constitutional issue, it would seem to address the advisory opinion problem.  Notably, the Leahy bill leaves this open as an option if the Court of Review wants it: "Upon certification of a question of law under this paragraph," the bill states, the Court of Review may "require the entire record to be sent up for decision of the entire matter in controversy." Maybe that should be mandatory instead of just optional.  Of course, the appellate court would have the discretion to decline the certification if it so wanted, at least at the Supreme Court level. See United States v. Penaranda, 543 U.S. 1117 (2005) (dismissing question certified by the Second Circuit).
This may be one of those problems that won't make much difference because no one has an incentive to challenge it. DOJ won't dare to raise it; a special advocate won't want to raise it; and the Court of Review may not think about it. But it seems like a lurking constitutional problem. Or maybe I'm just missing some caselaw that says this is all okay, in which case I'll post a quick correction with my apologies.

Orin Kerr is a Professor at the University of California, Berkeley School of Law. He is a nationally recognized scholar of criminal procedure and computer crime law. Before becoming a law professor, Kerr was a trial attorney in the Computer Crime and Intellectual Property Section at the Department of Justice and a Special Assistant U.S. Attorney in the Eastern District of Virginia. He is a former law clerk for Justice Anthony M. Kennedy of the U.S. Supreme Court and Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit.

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