Yesterday, at long last, U.S. District Judge Vaughn Walker* held the warrantless wiretap program initiated by the previous Administration (and never, to my knowledge, formally repealed by the current one) to be unconstitutional by granting the plaintiffs' motion for summary judgment on the issue of the government's liability under FISA for monitoring telephone calls of two lawyers to various people in Saudi Arabia. The formal opinion isn't available yet from the Northern District's website, but watch for it here, under case number CV 06-01791, In Re: Nat'l Security Agency Telecommunications Records Litigation. You can also read the slip opinion here.
Now, I spent a lot of time in 2006 and 2007 expressing outrage over the warrantless wiretap program. It still upsets me. I find a noticeable lack of heat in my contemplation of the healthcare reform that President Obama is so proud of. What's going on here?
The answer is simple. I think that healthcare reform is Constitutional. It's not a good idea, but the Constitution is not there to protect us against bad ideas. It's there to protect us from the government running roughshod over our individual liberties. The basic Constitutional argument I've heard against healthcare reform is aimed at the individual mandate -- the argument being that the government can't mandate that you engage in commerce at all. Seems to me that the "beyond the commerce power" ship sailed sixty-eight years ago with the case of Wickard v. Filburn, 317 U.S. 111 (1942). In that case, Mr. Filburn was required to pay a fine for not selling wheat that he grew on his own land. He chose to not engage in commerce when the government told him to, and the Supreme Court said it was within Congress' power to regulate interstate commerce under the principle of market aggregation to fine Mr. Filburn for selfishly wanting to feed his own family instead of participating in the aggregate national market for winter wheat.
While we might all regret that Wickard is now part of the Constitutional lexicon, and I don't think there is much criticism of the notion that poor Mr. Filburn got a very raw deal, it is, and absent a legal revolution the likes of which haven't been seen since, well, ever, it's going to stay. Principled notions of the "Constitution in Exile" movement or a return to the weak-central-government model of the early nineteenth century are not just quaint, they are antiquated -- and that's so even if the basis for that shift in understanding of the government's role in society was a fundamentally cynical and overtly political maneuver.
Today, in 2010, virtually no judges in the entire judiciary question the validity of the Federal government doing a very broad spectrum of things that would have seemed shocking to a legal scholar in, say, 1880. That is every bit as true for conservative judges as much as it is for liberal judges. Whatever idealistic notions we might have about a return to those sorts of days, let's be realistic -- we're not going to return to those days. So I'm left concluding that under precedent that is two-thirds of a century old and foundational to the very notions of modern government, the Federal government can force a person, under pain of surtaxes and fines, to engage in commercial activity.
Warrantless wiretaps, however, are obviously unconstitutional. They might even have been a good idea from a national security perspective; a valid and non-frivolous defense of the advisability of that policy could be made. (I never agreed with that argument, and still do not -- the program as I understood it cast a very broad net but still caught no fish. For the record, I never questioned anyone's good faith in executing the program despite expressing worries about the potential for abuse.) But again, the Constitution is not a policy document, it does not exist to provide for wise, effective, or beneficent government. It is there to set the limits on how far the government's power can extend. Whether the government seeks to extend its power beyond those boundaries for a good reason or a bad reason, the boundaries are there anyway.
To sum up:
- Warrantless wiretaps -- a defensible but on balance likely bad idea, which is unconstitutional. Objection is on the grounds of violating the Constitution.
- Healthcare reform -- a defensible but on balance likely bad idea, which is unfortunately constitutionally valid. Objection is on the grounds of foreseeable bad long-term fiscal consequences.
An objection based on the grounds of bad long-term fiscal consequences is qualitatively different from an objection based on violating the Constitution. That's why you Readers have detected less fire coming from me on healthcare reform than had come from warrantless wiretaps.
* Interestingly, Judge Walker is also assigned the case of Perry v. Schwarzenegger, the Federal Equal Protections challenge to the constitutionality of Proposition 8. Walker's chambers have pretty much got to be the hottest judicial clerkship available in the entire state of California right now. Judge Walker was originally nominated to the bench by Ronald Reagan, was opposed by the San Francisco Chronicle for "insensitivity to gays," re-nominated and confirmed by George H.W. Bush the Elder in 1989, and is presently the Chief Judge of the Northern District.