Debate (Round 2): Metadata and the Fourth Amendment – A Response

This post is one in a series of posts from Just Security‘s Jennifer Granick and Guest Author Orin Kerr debating the constitutionality of the NSA’s telephony metadata program.   Jennifer’s earlier posts can be found here and here; and Orin’s earlier reply can be found here

Jennifer rejects my reliance on existing precedents on the ground that the Fourth Amendment is “explicitly normative.”  When the Supreme Court decides Fourth Amendment cases, Jennifer notes, the Justices often appear to be grappling with what is sound policy.   From this, she suggests that when we debate what the Fourth Amendment protects, we should also grapple with the same normative questions that the Justices do. Our opinions about what the law should be are part of what the law is, collapsing the divide between “is” and “ought.”

Jennifer’s response raises interesting jurisprudential questions of what “law” is.  For the purposes of our debate, though, I think we face a more practical question: What version of law should we demand that the Executive Branch must follow?   Do we want the Executive Branch to follow the existing rules and underlying rationales found in judicial opinions?  Or do we want lawyers in the Executive Branch to interpret the Fourth Amendment in light of opinions of sound policy, more like the Supreme Court Justices appear to do?  And if we want the Executive Branch to interpret the Constitution based on opinions of sound policy, whose views of sound policy should govern?

It seems to me that the rules and principles found in existing doctrine provide the better standard for the Executive Branch to follow.   That standard is public and objective. It requires the Executive to follow the same interpretive rules that we expect lower court judges to follow when interpreting high-court precedents.   In contrast, if we want the Executive to interpret the Fourth Amendment by infusing the cases with policy balancing, then we run into the problem of identifying whose views of policy control.   Many people disagree on how to balance privacy and security: The answers depend on whom you ask.  If the Executive Branch gets to follow its own view of good policy, then the Executive only needs to staff OLC with lawyers whose policy views will eliminate constitutional protection.   We won’t get the pro-privacy views of Jennifer Granick.  Instead, we’ll get the OLC opinions of John Yoo. 

About the Author(s)

Orin Kerr

Fred C. Stevenson Research Professor at the George Washington University Law School Follow him on Twitter (@OrinKerr).