The Right Coast

February 06, 2006
Where is William Eskridge Now That Alberto Gonzales Needs Him?
By Mike Rappaport

Alberto Gonzales is testifying about the NSA antiterrorist program today before the Senate Judiciary Committee. Having reviewed the various legal memoranda, I believe that a reasonable argument can be made for the legality of the program under the strict originalist interpretive theory I follow. While I tend to have a narrow view of the President's Commander-in-Chief power, I believe there is a reasonable argument -- not conclusive, but reasonable -- that Congress's authorization of force against Al Quaeda authorized the program. That, combined with the administration's disclosure of the program to Congress throughout and the absence of any claims of abuse under the program, should end any charges of wrongdoing. Whether the program is ultimately upheld by the courts and how it should be legally authorized by Congress in the future are separate matters.

But while one can make a reasonable argument for the program under originalist interpretive theory, that is not the statutory interpretive theory most liberal law professors follow. One of the more popular theories is William Eskridge's dynamic statutory interpretation, which allows for the updating of statutes, sometimes even shortly after they were enacted. And under that theory, the legality of the NSA program is a slam dunk.

FISA was enacted during the Cold War in responses to abuses by prior Presidents. Circumstances have now changed: there is now a war on terror and a communications technology revolution has occured. And FISA itself contemplates new statutory authorization. So when Congress authorized action against Al Quaeda under these new circumstances, the dynamic theory should strongly approve of it. And the fact that the American people seem behind the program should cement the argument.

But Alberto Gonzales is having a hard time with liberal Congressmen. He could sure use some cover from an op ed by Eskridge. But where is Bill?