Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges
Released: 2014-05-07T00:00:00

Summary:
In the past year, the decisions and functions of the courts established under the Foreign Intelligence Surveillance Act (FISA) have received much public attention. FISA established two courts—the Foreign Intelligence Surveillance Court (FISC) and the FISA Court of Review—which have jurisdiction to review government applications to conduct electronic surveillance for foreign intelligence purposes. Various proposals have been introduced in Congress to amend the law that authorizes such surveillance and to change the internal practices and procedures of the courts. This report focuses on those proposals that would amend the process for selecting the judges who serve on the FISC and FISA Court of Review.
Under the existing framework, the Chief Justice of the U.S. Supreme Court "designates" existing federal judges to serve on the FISA courts. While critics have argued that the current process is partisan and lacks political accountability, transparency, and oversight, the Director of the Administrative Office of the U.S. Courts, acting on behalf of the Chief Justice of the Supreme Court, has expressed concern regarding proposals that would change the existing framework. Proposals that would alter the process for selecting FISA judges include S. 1460, the FISA Judge Selection Reform Act, which would effectively shift authority to the chief judges of the circuit courts; H.R. 2761, the Presidential Appointment of FISA Court Judges Act, which would authorize the President to choose FISA judges with the advice and consent of the Senate; and H.R. 2586, the FISA Court Accountability Act, which would permit Members of Congress to select FISA judges.
To understand the potential legal issues implicated by these proposals, this report first briefly reviews the constitutional method for appointing federal judges. The report also surveys the process of "designation," an alternative method used by Congress that allows current federal judges to serve temporarily on another federal court without undergoing a separate constitutional appointment. Lastly, the report explores how a reviewing court might evaluate the constitutionality of these proposals that would shift the authority to select FISA judges away from the Chief Justice alone, and vest it in other officials within the judicial, executive, and legislative branches.

subsections: section_title: Introduction
paragraphs: In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA) after conducting sweeping investigations into perceived electronic surveillance abuses by the executive branch. Among other things, FISA established the Foreign Intelligence Surveillance Court (FISC), which reviews government applications to conduct electronic surveillance for foreign intelligence purposes. In the wake of revelations from June 2013 concerning the scope of orders issued by the FISC, many have questioned the current mechanism for reviewing the executive branch's intelligence gathering practices. Members of Congress have introduced various proposals that would amend FISA or amend the practices and procedures of the FISC. This report focuses on the proposals that would alter the process for selecting judges to serve on the FISA courts.
section_title: Overview of FISA Courts and Selection of FISA Judges
paragraphs: Article III of the U.S. Constitution vests the "judicial power" of the United States in the Supreme Court and any inferior courts established by Congress. Judicial power entails a power to render final, "dispositive judgments" in particular cases and controversies. Federal judges, who preside over Article III courts, enjoy life tenure so long as they are in "good behaviour." Moreover, their salaries cannot be diminished during their terms in office. The purpose of these provisions is to ensure that federal courts operate free from interference from the political branches in order to, in the words of Alexander Hamilton, "secure a steady, upright, and impartial administration of the laws."
In FISA, Congress established the FISC, an Article III court. Overall, the FISC is authorized to issue orders related to foreign intelligence investigations. Upon a proper showing made in an application by a federal officer, the FISC may issue an order approving electronic surveillance, certain physical searches, the use of a pen register or a trap and trace device, or access to certain business records. FISA also established the FISA Court of Review, which has jurisdiction to review the denial of any application by the FISC.
FISA authorizes the Chief Justice of the U.S. Supreme Court to "designate" the federal judges to serve on the FISC and FISA Court of Review. Judges of both courts serve seven-year terms and are not eligible for a second term. The FISC is currently composed of 11 district court judges who must be selected from at least seven of the regional judicial circuits, with one of the eleven serving as the presiding judge. The FISA Court of Review is composed of three judges who may be selected from either the district courts or circuit courts of appeal, with one serving as the presiding judge. 
Some have argued that the authority to select judges should not reside solely with one unelected official, that is, the Chief Justice of the Supreme Court, and others have commented that the process is too partisan. With these criticisms in mind, several bills have been introduced in the 113 th Congress to alter the process for selecting FISA judges. Proposals to alter the selection method include one that would effectively transfer selection authority to the chief judges of the circuit courts, as the bill would require the Chief Justice to designate judges who are recommended by the chief judges. Another bill would authorize the President to choose FISA judges with Senate advice and consent, while another proposal would place this authority with congressional leadership. The principal issue that may be raised by these proposals is whether designation by a certain branch of government would be constitutionally permissible. Notably, the judicial branch issued comments in January 2014 and expressed concern with proposals to shift selection of FISA judges away from the Chief Justice. 
This report first briefly reviews the constitutional method for appointing Article III judges. It then surveys the process of "designation," an alternative method used by Congress that allows current federal judges to serve temporarily on another federal court without undergoing a separate constitutional appointment. Lastly, the report explores how a reviewing court might assess the constitutionality of some of these proposals that shift designation authority away from the Chief Justice alone and vest it in other officials within the judicial, executive, and legislative branches. 
section_title: Constitutional Appointment or Designation of Article III Judges
paragraphs: The Appointments Clause of the U.S. Constitution prescribes the manner in which certain government officials must be appointed. Principal officers, such as "Judges of the supreme Court," must be appointed by the President with the advice and consent of the Senate. The Supreme Court has also indicated that all other "Article III circuit and district judges ... are principal officers." Accordingly, the initial appointment of an Article III judge generally must adhere to the strictures of the Appointments Clause because he is a principal officer exercising "significant authority pursuant to the laws of the United States." 
However, if Congress subsequently expands the duties of an office for which one must be constitutionally appointed, the Court has concluded that it may not be necessary for an incumbent to receive a second appointment, if the additional duties are germane to the official's original government post. For instance, in Weiss v. United States , the Supreme Court held that military officers, who must be appointed by the President with the advice and consent of the Senate, could be designated to serve on a military court without a second constitutional appointment. Guided by the principle of "germaneness" established in Shoemaker v. United States , the Weiss Court reiterated "[i]t cannot be doubted ... that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should again be nominated and appointed." Based on this precedent, it appears there is generally no violation of the Appointments Clause when Congress permits the designation of an existing federal judge to serve in a separate position in a related Article III capacity. 
The Supreme Court also has had occasion to specifically address the constitutionality of the designation process within the judicial branch. Notably, Congress has long employed designations for Article III courts and has vested the Chief Justice with authority to temporarily assign federal judges to serve on other federal courts, including specialized tribunals. The creation of the now-defunct Commerce Court is one of the earliest instances where Congress vested the Chief Justice with authority to designate federal judges to a special tribunal. The first set of judges to this court was appointed by the President with the advice and consent of the Senate, and subsequent judges were "designated" by the Chief Justice from among the judges of the circuit courts. The Commerce Court's Chief Justice-based designation process became a model for future specialized courts, many of which operated for numerous years, or are still in existence, such as the FISA courts. Congress has also vested lower federal court judges with designation authority as well. 
Where the Supreme Court has reviewed designations within the judicial branch, it has upheld them. In McDowell v. United States , for example, the Court stated that the resolution of whether a circuit court judge validly designated a district court judge "presents a mere matter of statutory construction, for the power of Congress to provide that one District Judge may temporarily discharge the duties of that office in another district cannot be doubted." No constitutional questions were addressed in McDowell because the designation process "involves no trespass upon the executive power of appointment. … District Courts are solely the creation of statute, and the place in which a judge thereof may exercise jurisdiction is absolutely to the control of Congress." The Court in Lamar v. United States similarly dismissed a constitutional challenge to the Chief Justice's designation authority with respect to district court judges. In a one-sentence analysis, the Court rejected the defendant's argument that the designation violated the Appointments Clause and declared "merely to state [such argument] suffices to demonstrate its absolute unsoundness."
The few courts that have addressed the designation of FISA judges also have upheld the constitutionality of this process. In United States v. Cavanagh , the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) rejected an argument that the FISC violates the Appointments Clause because judges are designated by the Chief Justice rather than appointed by the President with Senate confirmation. The Ninth Circuit believed this argument was foreclosed by Lamar v. United States , which had upheld the temporary assignment of district court judges by the Chief Justice. The court stated that there was "substantial precedent for the temporary assignment of lower federal judges by the Chief Justice to serve on specialized courts." Similarly, district courts, in upholding the FISA designation process, have noted that FISA judges, though term limited, are not distinguishable from other federal judges who are designated to temporarily serve on other courts.
section_title: Proposals to Alter the Selecting Authority of FISA Judges
paragraphs: As mentioned above, the central issue that may be raised by the various proposals that seek to alter who selects FISA judges is whether designation by certain individuals within the different branches of government would be constitutionally permissible. The FISA Judge Selection Reform Act ( S. 1460 ), for example, would maintain designation authority within the judicial branch, but it would disperse the selection process for the FISC between the 13 chief judges of the circuit courts and the Chief Justice. Under the proposal, the number of FISC judges would increase from 11 to 13, with one designated from each judicial circuit. The Chief Justice would be directed to designate to the FISC the district court judge proposed by the chief judge of the circuit from which a vacancy arises. If the Chief Justice does not designate the first proposed district court judge, the chief judge of the circuit court would propose two other district court judges, one of whom the Chief Justice must designate. For the FISA Court of Review, S. 1460 would require that at least five associate justices of the Supreme Court concur in the Chief Justice's designation. Although chief judges of the circuit courts and associates justices of the Supreme Court would have a role in the designation process, the Chief Justice would still be charged with the final act of designating a judge to the FISA courts under this proposal. 
With respect to authorizing others within the judicial branch to designate the FISA judges, the limited judicial precedent available would appear to indicate that such an arrangement could pass constitutional muster. Turning to the decision in McDowell , discussed above, the Court suggested that it is "absolutely to the control of Congress" how and where a judge may exercise jurisdiction. The McDowell Court further declared: "the power of Congress to provide that one District Judge may temporarily discharge the duties of that office in another district cannot be doubted." This principle seems premised upon Congress's power to establish the courts and the absence of a constitutional provision that restricts the authority of a "District Judge to any particular territorial limit." Based on these declarations, a reviewing court may conclude that nothing expressly precludes Congress from vesting chief judges with broad authority to designate a judge from within their circuits to serve on the FISA courts. However, the McDowell holding was based on an 1871 statute that seems to be a precursor to the modern-day statutes that limit a chief judge's designation authority. Given that Congress has consistently chosen to regulate chief judges in this manner, it is conceivable that a reviewing court could view McDowell under a narrow lens and find insufficient support for providing chief judges with broader designation authority.
Other proposals would shift authority to designate FISA court judges to the President. For example, the Presidential Appointment of FISA Court Judges Act ( H.R. 2761 ) would authorize the President, by and with the advice and consent of the Senate, to "designate" judges for both the FISC and FISA Court of Review. This type of proposal could be viewed as the equivalent of requiring, and constituting, a second constitutional appointment, notwithstanding the use of the term "designate" rather than "appoint." Such an arrangement would abide by the strictures of the Appointments Clause. However, a separate constitutional appointment could call into question the FISA courts' status as Article III courts. Whereas judges appointed to Article III courts must have life tenure, FISA judges are appointed to seven-year terms. Based on available precedent, however, it would appear that a reviewing court could reasonably construe that life tenure protects a judge's overall position on the federal judiciary and not the particular court to which he is appointed. Just as courts have found that judges designated to serve on other special judicial panels for a finite period do not "lose their Article III status," so too a reviewing court may determine that a federal judge, first appointed to a district or circuit court, does not lose his overall Article III status or its accompanying protections if separately appointed to serve on the FISA courts for a fixed term.
In contrast, a proposal that would vest authority in the President alone to select an existing federal judge to serve on the FISA courts, could arguably raise separation-of-powers concerns on grounds that the exercise of such authority would constitute executive encroachment upon the province of the judiciary that could undermine judicial independence. However, the Court in Mistretta v. United States concluded that the separation-of-powers doctrine does not preclude the President from appointing judges to serve on the U.S. Sentencing Commission, an independent agency within the judicial branch performing nonadjudicatory functions. Even though the President has limited power to remove a judge from the commission, the Court concluded that the President "has no power to affect the tenure or compensation of Article III judges ... [nor does he have] power to coerce the judges in the exercise of their judicial duties." Similarly, assuming the President may remove a federal judge from serving on the FISA courts before the end of a seven-year term, the judge would continue to be an Article III judge serving on the district or circuit court to which she was initially appointed. On the other hand, the judges in Mistretta were acting in an extrajudicial capacity and not exercising judicial power, whereas FISA judges are exercising judicial powers on an Article III court. It is therefore conceivable that a court may conclude that selection of FISA judges by the President alone raises separation-of-powers concerns, if it determines that the President's power to remove judges from the FISA courts could have a coercive influence and compromise the impartiality of judges as they serve on the FISA courts.
Lastly, there are proposals that would vest designation authority with congressional leadership. The FISA Court Accountability Act ( H.R. 2586 ), for example, would allow both the Chief Justice and congressional leadership to make designations to the FISC and FISA Court of Review. Generally, these types of proposals would appear to be potentially problematic under the Appointments Clause and general separation-of-powers principles. While Congress has authority to select individuals to serve on entities that aid Congress in its legislative function, Congress has no authority under the Appointments Clause to directly select appointees that exercise significant authority pursuant to the laws of the United States. Secondly, congressional designations may raise legal concerns under the principles announced in I.N.S. v. Chadha . The Court in Chadha declared that that legislative acts, which have the "purpose and effect of altering the legal rights, duties, and relations of persons" outside the Legislative Branch, must satisfy the bicameralism and presentment requirements of the Constitution. Accordingly, congressional designation made to the judiciary by the leadership of each house without the approval of the other, or the President, would seem to implicate the principles established in Chadha .