3. Limits to judicial deference under the Fourth Amendment

Administrative law points to a related set of questions, however: Are there limits to the types of legal rules that can be left to the agency itself to design? Myriad consequential rules for surveillance programs will inevitably be made in the first instance by agencies. Are there some types of programmatic decisions that an agency simply should not be permitted to make under the Fourth Amendment--at least absent explicit congressional specification? In the administrative law context, the Court has held that Chevron does not apply to a legal question of such "deep 'economic and political significance'" as to be "central" to the underlying statutory design. (218) King v. Burwell, the Court's recent decision on the Affordable Care Act, reinforced the idea that some legal questions are so significant that a court must undertake to resolve them independently--that is, that the legal question is not a candidate for "Chevron space." (219)

The Second Circuit's decision in ACLU v. Clapper might be construed to have adopted a similar conception of Fourth Amendment reasonableness, albeit in dictum. (220) Clapper concerned a constitutional and statutory challenge to the NSA's bulk metadata collection program under section 215 of the PATRIOT Act. (221) The Second Circuit resolved the case before it on statutory grounds, holding that section 215 did not authorize the metadata collection program. (222) The court also suggested in dictum, however, that congressional authorization of metadata collection should have bearing on a judicial determination of Fourth Amendment reasonableness. (223) The court emphasized Congress's unique position "to understand and balance the intricacies and competing concerns involved in protecting our national security, and to pass judgment on the value of the telephone metadata program as a counterterrorism tool." (224)

There are powerful, and I think correct, arguments for the proposition that only Congress, not an agency, can create a proactive and preventative metadata collection program inside the United States--and, importantly, that Congress's design of an investigatory subpoena process does not amount to such a programmatic authorization. This is precisely the sort of systemic question that the traditional Fourth Amendment framework obscures because it does not see beyond any one-off application of the subpoena authority. For the' federal executive to initiate a program of bulk metadata collection involving domestic calls and continue it for a period of years (the program was in place for over a decade (225)), the Fourth Amendment at a minimum requires congressional authorization. This might be just the sort of legal question that Kerr had in mind in proposing a rule of lenity. But statutory ambiguity pervades program design, and a rule of lenity fails to disentangle those types of ambiguity that an agency should flesh out through program design (subject to judicial supervision).

The legal authority to engage in a program of surveillance involving domestic communications should come from Congress. But there are myriad legal questions at the level of program design and implementation that we will need to look to agencies to develop in the first instance. Rather than kicking the issue back to Congress every time an ambiguity arises, administrative law suggests a more discerning role for agency elaboration, congressional specification, and judicial review.

The section 702 surveillance program again provides a helpful example. The legal authority to undertake programmatic collection under section 702 is provided in FISA. In contrast to the section 215 program, then, the authorization for the program itself is statutory. This distinction between the two programs should have bearing on the question whether each type of collection is reasonable under the Fourth Amendment. Yet governance of the section 702 program raises a number of difficult and consequential legal questions under the statutory scheme--questions with significant implications for Fourth Amendment reasonableness. …