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>>It's just not clear what happened here Do you mean that the statue or intention of congress was unclear or that it doesn't matter whether it is an article II

>>It's just not clear what happened here 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.

tptacek 13y ago
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? Thanks for Megahey! Reading now.
DannyBee 13y ago
Maybe i'm missing it (i just skimmed it), but where did Megahey's appeal consider whether it was an article III court? I'm looking at 743 F.2d 59
tptacek 13y ago
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?
- dragonwriter 13y ago
  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.
  - tptacek 13y ago
    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.
    - dragonwriter 13y ago
      > 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.

tptacek 13y ago

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? Thanks for Megahey! Reading now.

DannyBee 13y ago

Maybe i'm missing it (i just skimmed it), but where did Megahey's appeal consider whether it was an article III court? I'm looking at 743 F.2d 59

tptacek 13y ago

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?

dragonwriter 13y ago
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.
- tptacek 13y ago
  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.
  - dragonwriter 13y ago
    > 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.