Reply #1: More...

[ProSense]

As David Barron explains here, this bill would at the very least remove the very formidable statutory obstacles to suit that the current FISA may currently impose, and it might well have a significant effect, as well, on any Article III argument that the government would raise against the plaintiffs' standing.

If the bill were, by some miracle, to become law, it would lead to a judicial resolution of this landmark dispute -- the only sort of resolution that will affect the Administration's conduct -- and become a very important doctrinal marker affecting the allocation of powers between Congress and the President, alongside Youngstown, U.S. v. Nixon, the Pentagon papers case, Nixon v. Administrator, and Morrison v. Olson. It would also permit the Congress to consider amendments to FISA on a clean slate, with the current statutory and constitutional framework firmly established. (See, e.g., David Kris's proposal that I discuss here.)

More likely, the Schumer bill would be defeated on roughly a party-line vote. Or, it's possible the Schumer bill might pick up sufficient Republican support for passage -- it's very difficult to publicly articulate a compelling reason for opposing such legislation -- in which case presumably the President would veto it. This would, alas, mean that the bill would not become a law; but in that case, the Administration's constitutional hardball would be clearly seen for what it is -- so dedicated to opposing any checks on untrammeled Executive power either by statute or by the independent judiciary that the President is willing to cast his first veto to prevent any evaluation by the other branches of the lawfulness of his conduct. Such exposure would, I hope, be chastening, and a very important signal to the public of the profound constitutional distinctions between the President and his critics.

OK, so a few quick words on the Feingold Resolution: There has been a great deal of discussion and debate in the blogosphere, including by Jack on this blog, with respect to two questions: the merits of the Feingold resolution and the politics of it. Actually, there's not much serious debate about the merits. Thus, as I've discussed in several posts, there's very little question that the President has authorized systematic violations of FISA. And unless I missed something, no one in Congress has so much as suggested otherwise. (If anyone has examples of any legislator agreeing with the Administration's AUMF argument, please let me know.) Therefore, as far as I can tell, everything in is true. The only question even under serious discussion on the Hill -- obliquely raised by Senator Specter and more unequivocally embraced by Senator Roberts and, more recently, by Senator Hatch -- has been whether FISA (or any other law regulating intelligence-gathering and interrogation) is unconstitutional to the extent it constrains the President's discretion on how best to gather intelligence against the enemy. And even on that question, there hardly seems to be majority support in either the Republican Senate caucus or with the public for the Commander-in-Chief prerogative to circumvent statutory limits.