The Article III Publication Power and the Foreign Intelligence Surveillance Court

Authors

John Langford, Protect Democracy

Abstract

The Framers vested “the judicial Power of the United States” in independent courts so that they may protect individual liberty and serve as a check on the legislative and executive branches. The judicial power, however, is narrow and not self-executing. As Chief Justice Marshall put it, it is merely the power “to say what the law is.” Federal courts cannot raise armies or pay money to enforce their decrees. Having neither force nor will, courts must instead rely on cultivating public support to secure the authoritative legitimacy necessary to effectuate their judgments.

But what happens when the executive branch asserts that a court’s opinions are classified, or when Congress directs a court to keep its orders sealed? Can Congress or the executive branch override Article III courts’ power to issue public decisions? That question looms large for the Foreign Intelligence Surveillance Court (FISC), which oversees a narrow and highly classified docket.

This Article answers that question. Starting from the Supreme Court’s recognition that federal courts have inherent supervisory power over judicial records, this Article offers the first account of the nature of Article III courts’ power to make their records public, or what I call the “publication power.” It surveys caselaw and scholarship on courts’ inherent powers to identify four points of consensus that provide a framework for explicating the nature of particular powers. Applying that framework to courts’ publication power, it demonstrates that the power to issue public decisions in the form of orders, judgments, and opinions is a core inherent power that cannot be abridged. In contrast, courts’ publication power over most, if not all, other judicial records can be regulated and perhaps abrogated consistent with Article III. For the FISC, that means that neither Congress nor the executive branch can prevent the court from issuing public decisions.

Keywords

Constitutional Law, Military Law and Justice, National Security, Courts, Information Privacy

Disciplines

Constitutional Law | Courts | Law | Military, War, and Peace | National Security Law

Recommended Citation

John Langford, The Article III Publication Power and the Foreign Intelligence Surveillance Court, 43 Cardozo L. Rev. 201 (2021).
Available at: https://larc.cardozo.yu.edu/clr/vol43/iss1/6