Do you mean that the statue or intention of congress was unclear or that it doesn't matter whether it is an article III court or not?
There is a tremendous amount of evidence that congress intended the FISC to be an article III court. Objections were raised specifically on the basis that it would extend the judiciary into policy making or not be a constitutional valid subject for an article III court.
Several courts since the 1980s have considered the claim that it is not an article III court and have rejected the argument every time it has been raised. (see United States V. Megahey or the second circuit appeal)
I think it is an important question for a couple reasons:
1) the minimization procedures that the court must approve are an extension of the warrant power that the court is granted to satisfy the fourth amendment.
2) the warrant power itself is generally understood to require a judge where a warrant is required in the first place(see keith 1972). Of course, there are cases where it is possible that an independent officer(not a judge) can satisfy this requirement but it is difficult to see how judicial oversight can be excluded in this case.
3) congress intended (by the committee reports) that judicial oversight was the only valid means by which the executive could be checked. Simply requiring documents wasn't enough for congress.
EDIT: reply to below
I understand the requirement that the constitution sets out for judges to apply to them specifically and not to any individual court. Thus temporary courts or tribunals(composed of judges that were appointed to other courts) can act as a proper article III court.
In terms of the subject matter of article III courts the constitution says that: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;" I don't think it requires that every court necessarily can consider all cases that the judicial power is entitled to hear; it only acts as to set out what the maximum subject matter that a federal court can consider. There are other courts like the FISC/FISCR that also have limited subject matter jurisdiction under statute such as the United States Court of International Trade that only hears customs cases yet it also an article III court.
Help me understand how Congress can create an inferior federal court that isn't subject to the rules of Article III? Doesn't an Article III court require appointment by the President, confirmation by the Senate, lifetime tenure, and power over all cases arising under the Constitution?
To your later reply: it sure seems like you're right about the notion of specialized Article III courts. And the fact that FISC judges are part-timers drawn from the federal bench somewhat mitigates the tenure concern. But how do you get around the non-Presidential appointment, and the lack of Senate confirmation? FISC can't possibly set a president that a party with a veto-proof majority can create speciality courts to isolate specific controversies appointed by random people without Senate confirmation, can it?
There is no Constitutional requirement that inferior court judges be Presidentially appointed or confirmed by the Senate; of judges, that is only Constitutionally mandated for those of the Supreme Court, beyond that "the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." (Art. II, Sec. 2)
> FISC can't possibly set a president that a party with a veto-proof majority can create speciality courts to isolate specific controversies appointed by random people without Senate confirmation, can it?
I think you mean "precedent" rather than "president"; in any case, the authority to do that (assuming "random people" means the President, executive department heads, or the courts) is expressly in the Constitution and doesn't need the precedent of the FISC.
I didn't think judges qualified as "inferior officers", which is a term in the appointments clause with some meaning. Am I wrong? What other judge is appointed as an "inferior officer" outside of advise and consent process?
See Rehnquist in Edmund v US, in which the standard for "inferior officer" is (paraphrased) "reports to or is directed by a principal officer", which is something you can't say about an Article III judge.
> I didn't think judges qualified as "inferior officers", which is a term in the appointments clause with some meaning. Am I wrong?
I think the construction of Article II Sec. 2 and Article III Sec. 1 admit of no other non-strained reading than that Supreme Court justices must be appointed through advise and consent and other Article III judges are appointed through advise and consent in the absence of specific alternate provision, but may be appointed by other means provided that the mechanism is consistent with the Article II Sec. 2 provision regarding inferior officers and the Article III Sec. 1 provision that Article III judges have tenure in the judiciary in good behavior.
> What other judge is appointed as an "inferior officer" outside of advise and consent process?
Historically, both the Emergency Court of Appeals (1942-1961) and the Temporary Emergency Court of Appeals (1971-1993) were Article III courts whose members were drawn from the among the active members of the federal bench and were appointed to the specific court in addition to their prior appointment outside the advice and consent process (the Article III status of the former is explicitly called out by the Supreme Court in Lockerty v. Phillips.) This is the same model used for the FISC and FISCR.
Here's what Edmund says, in holding (ironically given my argument) that a military court appeals judge is an inferior officer:
Generally speaking, the term "inferior officer" connotes a relationship with some higher ranking officer or officers below the President: whether one is an "inferior" officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude. If that were the intention, the Constitution might have used the phrase "lesser officer." Rather, in the context of a clause designed to preserve political accountability relative to important government assignments, we think it evident that "inferior officers" are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.
The reason Rehnquist gave for seeing military court judges as inferior was that the military reports directly to the Secretary of Defense:
Congress used similar language in establishing the Department of War, repeatedly referring to the Secretary of that department as a "principal officer," and the chief clerk, who would be "employed" within the Department as the Secretary "shall deem proper," as an "inferior officer." 1 Stat. 49, ch. VII.
To whom would a FISC judge report? Article III judges aren't directed by the Supreme Court or (obviously) the Attorney General or even the President.
First: The case you seem to be referring to (which took verifying the quotes to be certain of, because of a few errors you made) is Edmond v. United States, 520 US 651 (1997), addressing the appointment of judges to the Coast Guard Court of Criminal Appeals, and the decision of the court was written by Scalia, J., not Rehnquist, C.J.
Second: Given the fact that the judges of the FISC (and the FISCR) are already judges appointed to other Article III courts by advice and consent (just as was the case with the Emergecy Court of Appeals and the Temporary Emergency Court of Appeals), Edmond, by reference to Weiss, illustrates why it may be unnecessary to inquire as to which appointment procedure under the Appointments Clause is necessary (whether they are "principal" or "inferior" officers), since the members of the court are already appointed under the Appointments Clause before being assigned to the FISC or FISCR:
(Edmond, at 654): In Weiss v. United States, 510 U. S. 163 (1994), we considered whether the assignment of commissioned military officers to serve as military judges without reappointment under the Appointments Clause was constitutional. We held that military trial and appellate judges are officers of the United States and must be appointed pursuant to the Appointments Clause. Id., at 170. We upheld the judicial assignments at issue in Weiss because each of the military judges had been previously appointed by the President as a commissioned military officer, and was serving on active duty under that commission at the time he was assigned to a military court. We noted, however, that "allowing civilians to be assigned to Courts of Military Review, without being appointed pursuant to the Appointments Clause, obviously presents a quite different question." Id., at 170, n. 4.
Third: The factors Scalia identified in finding that the members of the Coast Guard Court of Criminal Appeals were inferior officers was not that "the military reports directly to the Secretary of Defense" (as, in any case, the Coast Guard, at the time, reported to the Secretary of Transportation), but rather that oversight of the Coast Guard Court of Criminal Appeals was found in the Judge Advocate General of the Coast Guard, who had certain rulemaking and other administrative authority, and the Court of Appeals for the Armed Forces, which exercises limited review of the decisions of the Coast Guard Court of Criminal Appeals; for the FISC, there is certain (though different than that exervised by the Coast Guard JAG over the Coast Guard court in Edmond) administrative authority vested in the Chief Justice (in part to be exercised in consultation with the Attorney-General and the Director of National Intelligence), and review authority in the FISCR (and, for the FISCR, the same administrative authority, with review authority in the Supreme Court.) However, Scalia also noted that it was important (though not expressly necessary) that this supervision was exercised within the Executive Branch, so application of Edmond to the FISC and FISCR in terms of inferiority seems somewhat murky.
This is great stuff. Thank you for taking the time. Sorry about the Scalia thing; I wrote that comment at 5am and was looking at (and misreading) the Oyez interface, which is wretched.
The two questions it looks like your comment broaches are:
* Is an appointment to the FISC by an appointed Article III judge so different as to approach the difference between a civilian and military appointment? If not, appointment without Senate consent likely passes muster with SCOTUS.
* Are FISC judges in any way supervised in a manner similar to the way that Coast Guard Court of Criminal Appeals judges are supervised by the Judge Advocate General of the Coast Guard? If so, they'd qualify as "inferior officers" regardless of the distinction between Federal circuit courts and the FISC.
I don't know the answer to either question, but my guess is that regarding the former the answer is "yes, the duties of a FISC judge are substantially similar to (in fact a small subset of) the duties of a general Article III judge", and my guess to the latter is "no, the supervisory role Roberts has over the FISC judges isn't meaningful enough to qualify them as inferior officers under Article II".
My guess is that a yes on either question makes it more likely than not that the USG would prevail in arguing that the FISC is an Article III court, though I still think the issue is murky.
The last couple of days have been quite an education on this. Thanks again!
Do you mean that the statue or intention of congress was unclear or that it doesn't matter whether it is an article III court or not?
There is a tremendous amount of evidence that congress intended the FISC to be an article III court. Objections were raised specifically on the basis that it would extend the judiciary into policy making or not be a constitutional valid subject for an article III court.
Several courts since the 1980s have considered the claim that it is not an article III court and have rejected the argument every time it has been raised. (see United States V. Megahey or the second circuit appeal)
I think it is an important question for a couple reasons:
1) the minimization procedures that the court must approve are an extension of the warrant power that the court is granted to satisfy the fourth amendment.
2) the warrant power itself is generally understood to require a judge where a warrant is required in the first place(see keith 1972). Of course, there are cases where it is possible that an independent officer(not a judge) can satisfy this requirement but it is difficult to see how judicial oversight can be excluded in this case.
3) congress intended (by the committee reports) that judicial oversight was the only valid means by which the executive could be checked. Simply requiring documents wasn't enough for congress.
EDIT: reply to below
I understand the requirement that the constitution sets out for judges to apply to them specifically and not to any individual court. Thus temporary courts or tribunals(composed of judges that were appointed to other courts) can act as a proper article III court.
In terms of the subject matter of article III courts the constitution says that: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;" I don't think it requires that every court necessarily can consider all cases that the judicial power is entitled to hear; it only acts as to set out what the maximum subject matter that a federal court can consider. There are other courts like the FISC/FISCR that also have limited subject matter jurisdiction under statute such as the United States Court of International Trade that only hears customs cases yet it also an article III court.