Since the disclosure that the President authorized warrantless NSA surveillance, there has been much debate about the legality of the President's actions. In previous posts, we have discussed arguments advanced by Attorney General Alberto Gonzales about  potential statutory authority and have explored case law relating to presidential Constitutional authority.  Many others, including Orin Kerr and Julian Ku, have also written thoughtful posts on these questions.

But there is another legal question connected to the surveillance: can this controversy ever get into the courts?

Is an individual suit possible?

The most logical way for a suit to enter federal district court would be if an individual who had been a target of a surveillance were to bring suit against the NSA or the President-- much as detainees like Padilla and Hamdi had standing to bring suit against those responsible for their detention. But such individual suit is highly unlikely. It would require that an individual discover that he or she was a target. And while classified information has been leaking on this, it seems rather certain that such specific information will not be leaked-- at least not any time soon. Thus, although anything is possible, it doesn't seem probable that a target will be bringing suit.

Could a member of Congress sue the President or some other member of the Executive Branch?

Given that a number of members of Congress seem to be quite displeased by the President's actions, it would not be surprising if one or several members brought suit, claiming that the President violated statutory restrictions and exceeded his Constitutional authority. Since the Vietnam War, such legislator suits have been quite common. But if such a suit were to occur, it is unlikely that courts would grant standing to the legislator-plaintiffs.

In the D.C. Circuit, there is a long jurisprudence on "legislator standing." But the Supreme Court has never ruled that federal legislators would have standing to sue members of the Executive Branch. In Raines v. Byrd, the Supreme Court was faced with a suit by several members of Congress relating to the constitutionality of the so-called Line-Item Veto." The Court ruled that the legislators in that case lacked standing and avoided pronouncing judgment on whether federal legislators would ever have standing.

In Raines, the Court cited Coleman v. Miller, a 1939 case in which it had ruled that a group of state legislators in Kansas could have standing to sue the Lieutenant Governor because his extra-constitutional vote to break a tie allegedly "nullified" their votes in the Senate of Kansas on a proposed U.S. Constitutional Amendment. In Raines, the Supreme Court held:

It is obvious, then, that our holding in Coleman stands (at most. . .) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have beencompletely nullified. (footnotes omitted)

And in the footnote corresponding to the words "at most," the Court noted:

Since we hold that Coleman may be distinguished from the instant case on this ground, we need not decide whether Coleman may also be distinguished in other ways. For instance, appellants have argued that Coleman has no applicability to a similar suit brought in federal court, since that decision depended on the fact that the Kansas Supreme Court "treated" the senators' interest in their votes "as a basis for entertaining and deciding the federal questions." 307 U.S., at 446 . They have also argued that Coleman has no applicability to a similar suit brought by federal legislators, since the separation of powers concerns present in such a suit were not present in Coleman, and since any federalism concerns were eliminated by the Kansas Supreme Court's decision to take jurisdiction over the case.

As Catherine Lotrionte and I have written elsewhere:

In essence, the Court [in Raines] refused to hold whether federal legislators would ever have standing; perhaps Coleman's holding applies only to state legislators. But, if Coleman's standards were ever held to apply to federal legislators, the principle would be that those legislators would have standing only if their votes had been "completely nullified" because their votes were sufficient to adopt a measure that was not adopted or to prevent the adoption of a measure that was adopted.

It is clear that in the current situation there has been no "vote nullification." There was no act of Congress that would seem to have been enacted, but due to some Executive Branch action was not enacted. The question on the merits is really whether the President has overstepped his statutory and Constitutional authority by authorizing NSA surveillance without a court order. As a consequence, it is nearly certain that courts will refused to grant members of Congress standing to sue.

Given that it is unlikely that a suit will make its way into court, how can the legal issues be resolved?

It seems likely that the debate on the President's authority will intensify. Unlike many legal disputes, the answer does not seem to lie in judicial resolution, but rather in "political accomodation." In other words, the President and Congress should bracket the ultimate questions of  Constitutional authority and agree on a workable framework for conducting intelligence surveillance. I had thought that FISA represented precisely such an accomodation.  And I am at a lose to see why that framework is now unworkable-- a highly classifed procedure, with the ability to approve surveillances retroactively.  But if the President believes FISA to be unworkable in light of "new threats" to national security, he and Congress should attempt to develop a more appropriate framework that both branches of government can live with.