Missing The Point

Ann Althouse has an excellent editorial on the NSA wiretapping decision and why it Judge Anna Diggs Taylor betrayed her position as federal judge. Althouse writes:

Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.

Judge Taylor did not base her reasoning in a well-founded argument based upon the rich precedent and prior judicial decisions. It was, quite simply, an incredibly sloppy decision. Judge Taylor tried to argue that the Bush Administration was in the wrong because it simply did whatever it wanted to do, ignoring the proper procedures and safeguards that existed to prevent rash action from overwhelming our system of law. There’s a legal argument to be made that the NSA program does exactly that. However, Judge Taylor herself committed that sin by writing an memorandum that is inexcusably sloppy — the sort of thing that probably wouldn’t pass even an introductory legal writing course.

As a future member of the legal profession, we’re constantly reminded about the importance of getting the facts right and constantly demonstrating that we know and can apply the legal rules built up through centuries of precedent to the situations we face. That is the very essence of the legal profession.

Professor Althouse is too tactful to say it directly, but it does appear as though Judge Taylor could stand a little remedial education.