A Follow-up on Clapper v. Amnesty International
Rochelle Bobroff at the Constitutional Accountability Center has this post on Clapper v. Amnesty International, the standing case argued to the Supreme Court yesterday: Clapper and the Constitutional Role of the Federal Judiciary. In part:
The parties’ briefing in Clapper v. Amnesty International USA appropriately focuses on whether the complex facts of this case meet the Supreme Court’s equally complex doctrinal criteria for according individuals "standing" to bring suit. But two amicus curiae briefs – one filed by the Constitutional Accountability Center (CAC) supporting the plaintiffs seeking standing, and the other filed by the Washington Legal Foundation (WLF) on behalf of six former Attorneys General opposing standing – highlight competing visions of the constitutional role of the federal judiciary, the big issue at the heart of the case, lurking behind the surface technicalities.
WLF’s brief contends that Article III of the Constitution, which establishes judicial review, has a "gatekeeping role" and "protects against judicial overreach and unwarranted litigation" – i.e., Article III is primarily aimed at keeping people and valid constitutional claims out of court, rather than letting these claims be decided in court.. Yet, as CAC’s brief demonstrates, WLF’s interpretation of Article III has very little basis in the text or history of the Constitution. The words of Article III express no worry about the courts trampling on the executive and legislative branches. To the contrary, Article III creates an extensive role for the judiciary in reviewing the constitutionality of federal laws passed by Congress and signed by the President.
The Washington Legal Foundation brief is here.
The Constitutional Accountability Center brief is here.
(Thanks to Doug Pennington at CAC for the pointer).
On the other hand, Orin Kerr says the standing issue in Clapper may be a red herring.