Strengthening Constitutional Self-Government

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Sixth Circuit Rules Against ACLU In Surveillance Case

The United States Court of Appeals for the Sixth Circuit ruled today that the ACLU and assorted petitioners who sought to challenge the Terrorist Surveillance Program could not demonstrate that they had standing (that is, the kind of requisite, demonstrable, concrete and particularlized injury necessary to meet the "case and controversy" requirement which permits court to hear a case under Article III of the Constitution), and ordered the case dismissed.

The full decision in available here,here, and news reports of the opinion are available here. Volokh’s contributors describe the case

here and here.


A quick read of today’s opinion suggests that it is well reasoned, particularly in light of the Supreme Court’s decisions of the past two terms which demonstrate that a majority of the justices still strictly defend standing as a constitutional limitation on the court’s authority. The only notable exception in which the Supreme Court chose to expand standing in recent terms was this year’s EPA case, where they did so to create a special new category for state petitioners--an exception that clearly would not apply in the context of the present national security case brought by private plaintiffs.

The Sixth Circuit’s decision is all the more welcome given the gross errors and plain misstatements of law made in Anna Diggs Taylor’s lower court opinion, in which she found not only standing based on speculative claims that foreign terrorist suspects were reluctant to talk on phones which might or might not be tapped (she failed to even address why it is that they would be more willing to talk if the taps were conducted with secret FISA warrants, a necessary element to show that the relief sought by petitioners would actually redress the alleged injury), but also reached the merits of the case. While those on the left cheered her results, even they could not justify her reasoning, which was thoroughly critiqued here and here.

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