Second Circuit Divides 6-6 on Rehearing Standing Case to Challenge FISA Amendments Act

I blogged about the panel decision in Amnesty International v. Clapper in March, opening and closing my post with the following two paragraphs:

On Monday, the Second Circuit handed down a very important decision on standing to challenge secret surveillance programs in Amnesty International USA v. Clapper. The decision, by Judge Gerard Lynch and joined by Judges Calabresi and Sack, offers a very easy way for plaintiffs to have Article III standing to challenge surveillance statutes. The opinion strikes me as puzzling, however, and it appears to be in conflict with other Courts of Appeals cases on standing to challenge surveillance regimes. I suspect Supreme Court review is a serious possibility.

Whether you like the new decision or not, I suspect it’s not the last we’ve heard on this issue. The opinion strikes me as in pretty direct tension with cases like ACLU v. NSA, the 6th Circuit’s case rejecting standing for the NSA’s warrantless surveillance program during the Bush years. Given the importance of the issue, and the tensions among the circuits, I would suspect this case may be headed upstairs.

DOJ petitioned for rehearing, and the Second Circuit denied rehearing yesterday in an evenly divided 6-6 vote. A flurry of opinions concurring and dissenting from the denial followed, which are generally pretty strongly worded. To my mind, those opinions make the Clapper case an excellent prospect for Supreme Court review.

I wonder if this really matters, though. Much of the discussion in the opinions concerns the fact that this is a facial challenge, not an as-applied challenge. But there’s an underlying oddity that the opinions don’t mention: Facial challenges are generally frowned upon in Fourth Amendment law, and it’s not clear that the law permits one to be mounted against the FISA Amendments Act at all even if plaintiffs have Article III standing. The key case is Sibron v. New York, 392 U.S. 40 (1968), in which the parties tried to litigate a facial challenge to a stop-and-identify statute. Sibron appears to say that you can’t bring an facial challenge to a statute that regulates warrantless searches and seizures: Facial challenges can only be brought against statutes governing the issuing of warrants. Here’s the key passage from Sibron:

The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of 180-a “on its face.” We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U.S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U.S. 108 (1964); Giordenello v. United States, 357 U.S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to [392 U.S. 40, 60] embody the safeguards demanded by the Fourth and Fourteenth Amendments.

Section 180-a, unlike 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to “stop” people, “demand” explanations of them and “search [them] for dangerous weapon[s]” in certain circumstances upon “reasonable suspicion” that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. 20 New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U.S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure “is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.” Cooper v. California, 386 U.S. 58, 61 (1967).

Accordingly, we make no pronouncement on the facial constitutionality of 180-a.

Sibron explains why there is relatively little law on Article III standing to bring Fourth Amendment facial challenges to statutes. Facial challenges are generally not allowed in the first place — at least unless the case challenges a regime of issuing warrants — so we haven’t seen many battles over Article III standing to raise challenges that can’t go forward anyway. Instead, Fourth Amendment law has focused extensively on “standing” to bring as-applied challenges, which the Supreme Court in Rakas v. Illinois tells us simply folds back on the Fourth Amendment question of whether the government conduct violated the plaintiff’s own reasonable expectation of privacy.