A Concluding Thought on Justiciability and Appellate Review in the Leahy Bill

For the (two?) readers who are following the exchange between Steve and me on Article III and appellate review in the Leahy bill, I wanted to offer two responses to Steve's latest post. The first response is about the prudential limits on justiciability, and the second is about Article III. 1) Steve mentions the prudential limits on justiciability, and I think there's a really interesting question of how those doctrines apply under the Leahy bill. To see why, go back to my hypothetical and consider the Fourth Amendment issue that the FISC wanted the Court of Review to decide. Under the prudential aspects of ripeness doctrine, I think the normal course would be to say that ripeness doctrine does not allow the Court of Review to decide the issue. It's just an abstract question with no factual record. And there is no apparent hardship to the one party in the litigation, as the order was granted below, unlike in the Fifth Circuit's recent ex parte cell site case.  So even if Steve is right that Article III allows a court to opine on the question, the prudential limits of justiciability would normally get in the way of courts deciding such issues. If that's right, then I wonder what that means about how the Leahy bill would work in practice. One possibility is that the Court of Review and/or the Supreme Court would limit or suspend the traditional prudential limitations on justiciability to try to make the new law work. That is, the judges may figure that this is the system we have and we may as well try to work with it; if that means fudging some traditional justiciability doctrines, then so be it. That's more likely at the Court of Review than at the Supreme Court, I suspect. Alternatively, perhaps the prudential justiciability doctrines will have a major impact on what kinds of legal issues can be certified up to the Court of Review and/or the Supreme Court. In other words, perhaps the very broad Leahy language will actually allow only a very narrow range of issues to be certified, making the certification process less significant than many think. 2)  One more thought on the Article III question.  Steve suggests that my view of Article III is incorrect because it would have the implication of not allowing courts to handle qualified immunity cases in the way they often do -- specifically, by reaching the merits even when qualified immunity applies. I disagree. Admittedly, I'm no fan of the reasoning of Camreta v. Greene. But as I understand Camreta, Article III allows courts to reach those questions because the answer has prospective effect on the litigants. The government officials engaging in a specific conduct challenged need to know if it's legal so they can know whether to continue it, and the party challenging the government needs to know what she can legally do to avoid government action. That clash of interests creates Article III power to decide the question under Camreta. In contrast, here the issue is whether the courts have Article III power to decide issues that are unrelated to the government's application. In my hypothetical, the government filed an application for a surveillance order and the FISC used the opportunity to hand down an opinion on issues with varying degrees of connection to the application. At the weak end, it included the question of whether the Third Amendment applies to the states, a matter is that is of no apparent interest to the United States and has no prospective effect on it. Under Camreta, I would think that at least that issue can't be decided under Article III.