Over at the Volokh Conspiracy, my friend Orin Kerr has a thoughtful post up about yesterday’s Second Circuit decision in ACLU v. Clapper, which refused to enjoin the bulk collection of telephone metadata during the six-month transitional period created by the USA Freedom Act. In particular, Orin offers two reasons why he disagrees with my criticism of the Second Circuit for ducking the constitutional question that the six-month period raises. Below the fold, I summarize Orin’s objections, and then explain why I don’t find either convincing.

Orin’s first objection to my analysis sounds in mootness. As he writes,

I take the court to be saying that if it tried to answer the constitutional question, the program would end and the question would be moot before it issued the opinion. It’s better to announce now that the judges are not enjoining the program rather than to waste a month trying to beat the clock knowing that they couldn’t make the deadline. And even if the issue weren’t moot by the time the circuit ruled, the Supreme Court wouldn’t review it on the merits because the program would have ended. Instead, the losing party presumably would go to the Supreme Court and try to get it vacated under Munsingwear, undoing whatever work the Second Circuit put in.

There are two problems with this reasoning: First, this case is not going to become moot on November 29. Part of the relief the ACLU is seeking is the purging of records collected under the program while it was in operation — the post-November 29 retention of which the government has not forsworn (for more on this issue, see Marcy Wheeler’s excellent post about the ongoing litigation before the FISA Court). Thus, even once the transitional period has ended, there will still be an ongoing injury (the government’s continuing retention of records collected, in the plaintiffs’ view, in violation of their Fourth Amendment rights). Orin may well be right that a fight over retention of records might not be a big enough deal to warrant the Supreme Court’s attention, but only because of the optics of the case; not because it will have become formally moot. And even if the government subsequently agrees to purge the records, that possibility doesn’t make the dispute moot now.

Second, even if the case will become moot on November 29 (again — it won’t), a Munsingwear order is specifically for circumstances in which the prevailing party voluntarily moots a case while the appeal is pending — as a means of preventing the prevailing party from insulating a judgment in its favor from appellate review. That’s a far cry from a case, like this one, in which a constitutional violation “expires” by dint of a statute (and in which one can hardly blame any mootness on the prevailing party). In some ways, these points dovetail — if the government really wanted the Supreme Court to review a constitutional ruling by the Second Circuit, I don’t think anything would stop the Court from finding the dispute to be not moot.

Orin’s second objection is more optical than legalistic:

it seems to me that this new opinion is a companion of sorts to the earlier decision ruling the program unlawful. The two opinions go together. Many civil libertarians celebrated the Second Circuit’s pragmatic, politically savvy, let’s-do-what-we-can-to-get-Congress-to-act moves in the first opinion. If you liked that opinion, it’s a little hard to object to the Second Circuit’s pragmatic, politically savvy, we-got-Congress-to-act-on-this-so-we’re-done moves in the second opinion.

Frankly, I don’t understand this point at all. Surely Orin would agree that courts faced with a statutory question and a constitutional question should resolve the case on statutory grounds whenever possible, and so, whether one agrees with the conclusion of the May 2015 Second Circuit opinion, the fact that the court stopped at the holding that the phone records program wasn’t authorized by Congress (and didn’t go on to resolve the Fourth Amendment question) is entirely unobjectionable. But just because a court “got-Congress-to-act-on-this” doesn’t mean “we’re done” if the way Congress “acted” on “this” nevertheless presents (or fails to eliminate) the same constitutional question. Put another way, if, instead of replacing the phone records program, the USA Freedom Act had simply provided the express authorization that the Second Circuit had found lacking, would Orin really object to the court now resolving the Fourth Amendment question raised by such bulk, warrantless collection of phone records? I have to think the answer is no. But at least during the transitional period, that’s exactly what the USA Freedom Act does. Why, then, should it be “hard” for “civil libertarians” to object to the Second Circuit’s refusal to do so yesterday? Do “we” really have to pick between fixing statutory problems with a government program and resolving constitutional objections thereto?

Instead, Orin’s real objection is that the case really is, or at least soon will be, moot. But it certainly isn’t moot yet (as the Second Circuit held yesterday); it’s not going to become moot on November 29 (as I argued above), and even if it was, that still wouldn’t (and shouldn’t) prevent the Second Circuit from resolving the constitutionality of what’s happening today, even if it might affect the scope of the remedy for a constitutional violation going forward.