Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments

[Excerpt] Beginning in the summer of 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been published and are apparently based on unauthorized disclosures of classified information by Edward Snowden, a former NSA contractor. The reports have focused on two main NSA collection activities conducted under the auspices of the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As the public’s awareness of these programs has grown, Members of Congress and the public have increasingly voiced concerns about the constitutionality of these programs. This report provides a description of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each. Although a brief overview of the constitutional arguments and issues raised in the assorted cases is included, a detailed analysis or evaluation of those arguments is beyond the scope of this report

Action and Reaction: The Trump Executive Orders and Their Reception by the Federal Courts

In the legal sphere, some of the most dominant elements of President Donald Trump’s first year in office were his executive orders. This article focuses on the following (the “Trump Executive Orders”): the three travel ban orders, the sanctuary jurisdictions order, the two successive transgender military exclusion memoranda,and the Attorney General statement indicating rescission of the Deferred Action on Childhood Arrivals (DACA) program. These orders attracted much national media attention and were clearly intended to produce political effects. As a presidential candidate, Trump campaigned for a ban on Muslim immigration and a wall at the United States-Mexico border, and made other statements that solidified support among his populist base. The Trump Executive Orders, as efforts to fulfill some of these promises made during the campaign, have significant political roots. As documents designed to have legal force and effect, they also have legal significance. Taken together, they demonstrate a strong desire to exclude certain populations and entities from the benefits of being part of American society. The Trump Executive Orders reflect the exclusionary bent of his populism. As a political proposition, calling to exclude the outsider benefitted Trump’s candidacy. But, as a principle of presidential legal action, it has been problematic. Federal courts have been hostile to most of the Trump Executive Orders, and with respect to DACA, a federal court’s initial invalidation of the related Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program left the door open to continued operation of DACA. The courts’ decisions indicate somewhat ironic results. The exclusionary effect of the Trump Executive Orders is, in a sense, an effort to “turn the clock back” in the affected subject-matter areas. That is, they intended to halt the momentum built during President Obama’s years in office and to begin movement in the opposite direction. Through enjoining these orders, federal courts are making analytical strides that move constitutional doctrine in a direction that conforms more with the momentum that the Trump administration is battling. While the Trump administration has been trying to halt momentum toward liberalization in the political realm, some courts have been developing new doctrines moving liberalization forward in the judicial realm. This article attempts to describe, and point to the irony of, courts using doctrinal expansion and novel interpretation in ways that run counter to President Trump’s exclusionary agenda

Dreamers Interrupted: The Case of the Rescission of the Program of Deferred Action for Childhood Arrivals

In 1994, California voters went to the polls to pass Proposition 187, a measure designed to deter unauthorized immigration by denying a range of public benefits to the undocumented. Twenty-five years later, undocumented immigration remains a deeply polarizing issue in our country. But if the political discourse seems similar, the civil rights toolkit is not. In an earlier era, equal protection arguments had pride of place, but today, advocates rely heavily on structural and institutional arguments to constrain official discretion.In 1982, the United States Supreme Court’s decision in Plyler v. Doe declared unconstitutional a Texas statute that denied undocumented students access to public elementary and secondary schools. The Justices emphasized the harm to our democracy that would result from dehumanizing innocent children and relegating them to a permanent underclass of illiterates. In truth, Plyler was a jurisprudential anomaly even at the time it was decided. As a result, in the intervening years, the decision was narrowly limited to its facts, and resolution of the treatment of undocumented immigrants was largely left to the political process. With no clear place in the polity, the undocumented were especially burdened by processes that depend heavily on striking political bargains to influence discretionary policies. In the absence of a right to vote and a robust set of constitutional rights, unauthorized immigrants have mainly been able to bolster their claims to full inclusion through appeals to decency and desert.The struggles of the Dreamers, undocumented immigrants who came to the United States as children, illustrate the limits of these calls for basic fairness. The Dreamers’ assertions of innocence, even though expressly legitimated in Plyler, have not allowed them to escape what sociologist Roberto G. Gonzales describes as a “transition to illegality” when they graduate from high school. Despite their academic achievements, they could not find a secure path to higher education, lawful employment, or American citizenship. When President Barack Obama’s administration created the Deferred Action for Childhood Arrivals (“DACA”) program in 2012, undocumented youth received temporary relief from the threat of deportation as well as access to a renewable authorization to work legally in the United States. However, President Donald Trump’s administration rescinded the program just five years later. In the ensuing litigation, lower courts have split on the rescission’s permissibility, and the U.S. Supreme Court is reviewing the issues in the 2019-2020 term. As the Justices deliberate about these questions, they must consider the unique situation that the Dreamers face. Beneficiaries of the DACA program have come out of the shadows to apply for driver’s licenses and get jobs. The program’s abrupt termination has significantly destabilized their lives, and they cannot turn to the ballot box to rectify the situation. Although the Dreamers have asked for the “right to have rights,” the Court has not reinvigorated its equal protection jurisprudence to confer basic entitlements on persons or even citizens. Because the Court has construed the constitutional entitlements of marginalized groups parsimoniously, government officials operate in a steadily expanding realm of discretionary authority. In response, civil rights advocates have been forced to focus on just how much latitude these officials enjoy before they abuse their discretion. In the DACA cases, undocumented youth have contended that they at least have a right to settled expectations when relying on benefits under federal programs. By requiring administrative agencies to weigh reliance interests in a meaningful way, the Court can make clear that more is at stake than mere deference to government officials’ exercise of discretion. The Justices have the opportunity to remind agencies that program beneficiaries also have significant interests at stake that deserve official recognition and respect

George Washington’s Attorneys: The Political Selection of United States Attorneys at the Founding

This Article examines the relationship between the Nation’s first President and the selection of United States Attorneys. It argues that politics played an important, if not primary, role in the President’s selections. George Washington sought those who would represent the government’s interests, adhere to the government’s policies, and advance Washington’s political goals. His selections also demonstrated Washington’s requirement of loyalty to America. In this respect, the politicization of United States Attorneys occurred at the outset. Part I of this Article defines politicization and identifies its four aspects. Part II describes the United States Attorney position as understood through the 1789 Judiciary Act and state experience. Part III examines how Washington’s selections and selection process included three of the four politicization categories. The concluding Section briefly explores the ramifications of politicization and its potential benefits in today’s prosecutorial environmen