Bench Memos

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Setting Standing Straight


To get right with the Constitution’s principles regarding standing, here is a fine paragraph from Judge Alice Batchelder’s opinion in ACLU v. NSA (page 26 of this PDF file):

The plaintiffs allege that the President, as an actor in our tripartite system of government, exceeds his constitutional authority by authorizing the NSA to engage in warrantless wiretaps of overseas communications under the TSP.  But this court, not unlike the President, has constitutional limits of its own and, despite the important national interests at stake, cannot exceed its allotted authority. . . .  It would ill behoove us to exceed our authority in order to condemn the President or Congress for exceeding theirs.

I hope Richard Epstein is paying attention.



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