I'm not a lawyer; I just play one on message boards. Also, while I think my invocation of "review boards" is closer to the truth than the notion that the FISC is a real court, you should know that the sentiment is disputed and though I don't believe it's hyperbolic, some people do.
Courts of law established by the federal government must comply with Article III of the US Constitution (state courts, which is where the overwhelming majority of all controversies in the US are heard, don't need to be structured along the lines of Article III, because the US Constitution defines the federal government and not the state governments).
An Article III court is staffed with a federal judge appointed by the President (as specified in Article II) with a lifetime tenure. Article III courts "extend to all cases, in law and equity, arising under this Constitution".
FISC court judges are appointed from the federal bench (they're judges appointed by a President for a lifetime term on a federal court). But they have a limited tenure on FISC --- seven years. And unlike Article III appointments, FISC judges are appointed by the Chief Justice of the Supreme Court. And, most importantly, FISC judges do not have power that extends to all cases in law and equity under the Constitution. In fact, the only thing they're empowered to do is authorizing FISA certifications.
Things that the FISC does not appear to be able to do: hear criminal cases, sentence defendants, overturn laws, or establish precedents binding on any other court.
There are other federal courts that aren't Article III courts --- bankruptcy is one of them. Bankruptcy court judges have 14 year terms. Even though they function as part of the district court system, the Judiciary is clear that they aren't Article III judges. It's worth noting that Bankruptcy's bizarro status in the court system has also created stare decisis problems with the rest of the court system. There's little reason to believe that FISA courts, which are even further removed from Article III than Bankruptcy, would be more judicially potent.
One dispute about the Constitutional status of FISC judges arises from case law in the 1990s, wherein a defendant claimed that the FISC was a violation of separation of powers. The appellate decision ruled that FISC judges weren't violating Article III by serving on the FISC, but I dispute that the language in the decision dictates that those judges are in fact Article III judges; I think it says merely that a federal judge doesn't violate Article III by sitting on a body that is effectively an agent of Congress. If they are Article III courts, the FISC is unconstitutional (in a technical way, not a substantive way).
I'm a layperson summarizing independent research here, so I'd very much appreciate an expert's opinion on this analysis.
>>And, most importantly, FISC judges do not have power that extends to all cases in law and equity under the Constitution. In fact, the only thing they're empowered to do is authorizing FISA certifications.
The FISA court has limited subject matter jurisdiction but I disagree that limited subject matter jurisdiction is impossible for an article III court.
Article III says explicitly:"The judicial Power shall extend to all Cases, in Law and Equity.." not that every article III court must be empowered to hear an case whatsoever. I contend that this refers to the maximal subject matter that any article III court may consider, not that every article III court must be constitutionally empowered to consider any case that falls under Article III sec 2 requirements.
If this was the case temporary judicial courts convened for a specific purpose would be plainly unconstitutional. I am no aware of no one who considers the Court of International Trade to be an article I court because of its limited jurisdiction. It only hears customs cases by law(28 USC 255). This is exactly analogous to the FISA Court/FISCR in their limited jurisdiction.
EDIT:
See Kevork 634 F.Supp. 1002
"The defendants also contend that FISA violates Article III of the Constitution because the Foreign Intelligence Surveillance Court is not a proper Article III court and because the Act delegates judicial power to the Executive Branch. In addition, the defendants argue that the structure of the FISA court denies its judges their judicial independence, making the Court a rubber stamp. These arguments were raised and rejected in... I also reject these contentions."
The court rejected the argument that the FISA court was not an article III court.
The President appoints Court of International Trade judges, and those appointments are confirmed by the Senate.
I think you and 'DannyBee have made it pretty clear that relying on the idea that the FISC isn't an Article III court is a perilous position, but I continue to be unclear on how FISC possibly could be an Article III court given its structure.
Courts of law established by the federal government must comply with Article III of the US Constitution (state courts, which is where the overwhelming majority of all controversies in the US are heard, don't need to be structured along the lines of Article III, because the US Constitution defines the federal government and not the state governments).
An Article III court is staffed with a federal judge appointed by the President (as specified in Article II) with a lifetime tenure. Article III courts "extend to all cases, in law and equity, arising under this Constitution".
FISC court judges are appointed from the federal bench (they're judges appointed by a President for a lifetime term on a federal court). But they have a limited tenure on FISC --- seven years. And unlike Article III appointments, FISC judges are appointed by the Chief Justice of the Supreme Court. And, most importantly, FISC judges do not have power that extends to all cases in law and equity under the Constitution. In fact, the only thing they're empowered to do is authorizing FISA certifications.
Things that the FISC does not appear to be able to do: hear criminal cases, sentence defendants, overturn laws, or establish precedents binding on any other court.
There are other federal courts that aren't Article III courts --- bankruptcy is one of them. Bankruptcy court judges have 14 year terms. Even though they function as part of the district court system, the Judiciary is clear that they aren't Article III judges. It's worth noting that Bankruptcy's bizarro status in the court system has also created stare decisis problems with the rest of the court system. There's little reason to believe that FISA courts, which are even further removed from Article III than Bankruptcy, would be more judicially potent.
One dispute about the Constitutional status of FISC judges arises from case law in the 1990s, wherein a defendant claimed that the FISC was a violation of separation of powers. The appellate decision ruled that FISC judges weren't violating Article III by serving on the FISC, but I dispute that the language in the decision dictates that those judges are in fact Article III judges; I think it says merely that a federal judge doesn't violate Article III by sitting on a body that is effectively an agent of Congress. If they are Article III courts, the FISC is unconstitutional (in a technical way, not a substantive way).
I'm a layperson summarizing independent research here, so I'd very much appreciate an expert's opinion on this analysis.