Oral Argument in Clapper v. Amnesty International

Today the Supreme Court heard oral argument in Clapper v. Amnesty International. The case involves Article III standing to challenge a part of the FISA Amendments Act of 2008, which is a statute designed to regulate surveillance for national security purposes. The transcript from today’s oral argument is here.

My primary reaction to the Clapper argument is the same as my reaction to the case when the Second Circuit denied rehearing: I have trouble understanding what it means to have standing to bring a Fourth Amendment facial challenge given that Fourth Amendment caselaw does not permit such facial challenges. As I mentioned last year, Sibron v. New York, 392 U.S. 40 (1968), appears to say that you can’t bring a Fourth Amendment facial challenge to a statute that regulates warrantless searches and seizures. Facial challenges can only be brought against statutes governing the procedures of issuing warrants.

Here’s the key passage from Sibron, which involved a challenge to a stop-and-identify statute:

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 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.

That makes a lot of sense to me. Fourth Amendment challenges are notoriously fact-specific, and facial challenges involve no facts. So it’s hard to know what it even means to bring a Fourth Amendment facial challenge to warrantless surveillance. Government conduct either violates the Fourth Amendment or it doesn’t. The fact that a statute was enacted that forbids some conduct and allows other conduct has no bearing on the question. Given that, what does it mean to say that a statute concerning warrantless surveillance satisfies the Fourth Amendment? Does it mean that some kind of “typical” set of hypothetical facts permitted by the statute also complies with the Fourth Amendment? Or does it mean that every conceivable set of facts covered by the statute complies with the Fourth Amendment? Or do you consider all the hypothetical facts in which the statute could be used — which might be hundreds or thousands of different scenarios — and then enter a ruling as to the constitutionality of each of them?

If the reasoning of Sibron applies to the statute in Clapper, then a ruling that there is standing would represent only a symbolic victory for the plaintiffs’ Fourth Amendment claims. There would be Article III standing to bring a Fourth Amendment challenge, but the challenge would then be blocked because the statute must be challenged on an as-applied basis rather than as a facial challenge. Of course, the statute could still be challenged on a facial basis on grounds outside the Fourth Amendment, but my sense is that the Fourth Amendment challenge is the primary cause of action in this case.