Reform of the Foreign Intelligence
Surveillance Courts: Procedural and
Operational Changes
Andrew Nolan
Legislative Attorney
Richard M. Thompson II
Legislative Attorney
January 16, 2014
Congressional Research Service
7-5700
www.crs.gov
R43362

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Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes

Summary
Recent disclosures concerning the size and scope of the National Security Agency’s (NSA’s)
surveillance activities both in the United States and abroad have prompted a flurry of
congressional activity aimed at reforming the foreign intelligence gathering process. While some
measures would overhaul the substantive legal rules of the USA PATRIOT Act or other provisions
of the Foreign Intelligence Surveillance Act (FISA), there are a host of bills designed to make
procedural and operational changes to the Foreign Intelligence Surveillance Court (FISC), a
specialized Article III court that hears applications and grants orders approving of certain foreign
intelligence gathering activities, and the Foreign Intelligence Surveillance Court of Review, a
court that reviews rulings of the FISC. This report will explore a selection of these proposals and
address potential legal questions such proposals may raise.
Due to the sensitive nature of the subject matters it adjudicates, the FISC operates largely in
secret and in a non-adversarial manner with the government as the only party. Some have argued
that this non-adversarial process prevents the court from hearing opposing viewpoints on difficult
legal issues facing the court. To address these concerns, some have suggested either permitting or
mandating that the FISC hear from “friends of the court” or amici curiae, who would brief the
court on potential privacy and civil liberty interests implicated by a government application.
While formally codifying the FISA courts’ authority in statute could arguably clarify the scope of
the court’s authority with respect to amici and encourage the courts to exercise that authority
more frequently, it is unclear what legal difference a codification of the amicus authority
ultimately makes, as the statutory authority is largely duplicative of the authority the FISA courts
already possess as a matter of their inherent power. Proposals to mandate, rather than permit, that
the FISC hear from an amicus might also fall within Congress’s considerable power to regulate
the practices and procedures of federal courts. Nonetheless, such mandatory amicus proposals are
uncommon and could potentially raise constitutional issues concerning the independence of the
FISC to control its internal processes. Such proposals may also prompt questions to the extent
that they conflict with constitutional rules about who can appear before federal courts and what
powers those individuals may wield when there.
In another attempt to promote greater judicial scrutiny of FISA applications, some have suggested
that Congress mandate that the FISC sit en banc—that is, conduct review by all 11 judges of the
court—when making “significant” interpretations of foreign intelligence statutes. Under current
law, the FISC is permitted in certain instances to hold a hearing or rehearing en banc, mainly to
ensure uniformity of FISC decisions and when addressing legal questions of exceptional
importance. Requiring that the FISC sit en banc does not appear to raise major constitutional
questions as such a proposal would likely not hinder the FISC from performing its core
constitutional functions, which primarily includes independently adjudicating matters before it
with finality.
There have also been calls to alter the voting rules of either the FISC, when sitting en banc, or the
Foreign Intelligence Surveillance Court of Review apparently in an effort to create a higher
threshold for government surveillance. While Congress has significant constitutional power to
govern the practice and procedure of the federal courts, including the two foreign intelligence
courts, it is unclear whether setting these voting rules falls within that power or, conversely,
whether it may intrude upon the core judicial function of these federal tribunals. Some could
argue that creating a higher voting threshold could pose a risk of interfering with the
independence of these courts. However, changing the voting rules could also be seen as not
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Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes

mandating that a court reach certain conclusions and could appear to leave the ultimate decision-
making authority with the FISA judges.
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Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes

Contents
Introduction ...................................................................................................................................... 1
Overview of the FISA Courts .......................................................................................................... 1
Jurisdiction of the FISA Courts ................................................................................................. 2
Judges and Staff of the FISA Courts .......................................................................................... 3
Operations of the FISA Courts .................................................................................................. 3
Congress’s Power to Regulate the Practice and Procedures of Federal Courts ............................... 5
FISA Reform and Amicus Curiae .................................................................................................... 9
Background on the Amicus Curiae .......................................................................................... 10
Allowing the FISC to Hear from an Amicus Curiae................................................................ 11
Requiring the FISC to Hear from an Amicus Curiae ............................................................... 13
Mandating an En Banc Panel of the FISC ..................................................................................... 16
History of En Banc Proceedings .............................................................................................. 16
Legal Issues with Requiring an En Banc Panel for “Significant Interpretations” of
FISA ..................................................................................................................................... 18
Altering Voting Rules of the FISC and the FISA Court of Review ............................................... 19

Contacts
Author Contact Information........................................................................................................... 22

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Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes

Introduction
The Foreign Intelligence Surveillance Act (FISA) of 1978 was the product of sweeping
congressional investigation and deliberation prompted by perceived electronic surveillance
abuses by the executive branch.1 Among other things, FISA established the Foreign Intelligence
Surveillance Court (FISC) to review government applications to conduct electronic surveillance
for foreign intelligence purposes and the Foreign Intelligence Surveillance Court of Review
(FISA Court of Review) to review the decisions of the FISC.2 In the wake of revelations in June
2013 concerning the scope of orders issued by the FISC, many have questioned the efficacy of
the current mechanisms for reviewing the executive branch’s intelligence gathering practices.
While some have proposed altering the underlying substantive law that regulates such
surveillance, other proposals address the practice and procedures of authorizing such surveillance
activities.3
This report begins with an overview of both the FISC and the FISA Court of Review, including
the jurisdiction of these courts, how the judges are appointed, and the FISC’s practices and
procedures for reviewing and issuing surveillance orders. The report then discusses the scope and
underlying legal principles behind congressional regulation of the procedures of the federal
courts, and applies those principles with respect to the various proposals to reform the FISA
judicial review process. These reforms include requiring the FISC to hear arguments from
“friends of the court” or amici curiae, who would brief the court on the privacy or civil liberty
interests implicated by a government application;4 mandating that in certain instances the FISC sit
en banc—that is, with all 11 FISC judges;5 and altering the voting rules of the FISC and FISA
Court of Review.6
Overview of the FISA Courts
The creation of the foreign intelligence surveillance courts came about from the confluence of
two major legal and political developments in the 1970s. First, in 1972, the Supreme Court
suggested in the Keith case that while domestic security surveillance must be handled through
traditional legal processes, Congress could establish a special legal framework for reviewing
requests for foreign intelligence surveillance.7 Second, in 1975, Congress created the Senate

1 See Foreign Intelligence Surveillance Act of 1978, P.L. 95-511, 92 Stat. 1783; see generally Foreign Intelligence
Surveillance Act of 1977, Hearings on S. 1566 Before the Subcomm. on Criminal Law and Procedures of the S. Comm.
on the Judiciary, 95th Cong. (1977); Foreign Intelligence Surveillance Act of 1978: Hearings on S.1566 Before the
Subcomm. on Intelligence and the Rights of Americans of the S. Select Comm. on Intelligence, 95th Cong. (1978); S.
Rpt. 94-1035 (1976); H. Rpt. 95-1283 (1978).
2 See 50 U.S.C. §§ 1801-1181g.
3 For a background on the substantive law that regulates U.S. foreign surveillance practices, see CRS Report R43134,
NSA Surveillance Leaks: Background and Issues for Congress, by John W. Rollins and Edward C. Liu. For a
discussion on recent proposals to introduce a public advocate into the FISA courts’ adjudicatory process, see CRS
Report R43260, Introducing a Public Advocate into the Foreign Intelligence Surveillance Act’s Courts: Select Legal
Issues, by Andrew Nolan, Richard M. Thompson II, and Vivian S. Chu.
4 See infra notes 119-120, 133-134 and accompanying text.
5 See infra note 160 and accompanying text.
6 See infra note 188 and accompanying text.
7 United States v. United States District Court (Keith Case), 407 U.S. 297, 323 (1972).
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Select Committee to Study Governmental Operations With Respect to Intelligence Activities,
commonly known as the “Church Committee,” to review the executive branch’s intelligence
gathering activities.8 The Church Committee unearthed widespread surveillance of American
citizens and recommended tighter controls on intelligence activities.9 Deliberating in the context
of both the Keith case and the Church Committee Report, Congress enacted FISA in 1978.10
At the heart of FISA is the FISC, a specialized Article III court11 that is empowered to “hear
applications for and grant orders approving” of certain foreign intelligence gathering efforts.12
The FISC is wholly unique among federal courts in that its jurisdiction is narrowly tailored; the
selection of its judges deviates from traditional constitutional appointments process; and its day-
to-day operations are conducted almost entirely in secret. Before addressing some of the
proposals to alter the current practices and procedures of the FISC and FISA Court of Review,
this section will take a closer look at the current structure and operational processes of these
foreign intelligence courts.
Jurisdiction of the FISA Courts
The jurisdiction of the FISC is narrow in scope in that it solely “relates to the collection of foreign
intelligence by the federal government.”13 As originally enacted, the FISC’s authority was limited
to hearing government applications for electronic surveillance.14 The court’s jurisdiction was later
expanded, however, to hear applications for and grant orders approving of four types of
investigative methods: (1) electronic surveillance;15 (2) physical searches;16 (3) pen register/trap
and trace surveillance;17 and (4) the use of orders compelling the production of tangible things.18
Additionally, under the FISA Amendments Act of 2008, the FISC is authorized to review the
government’s certifications, minimization and targeting procedures concerning the targeting of
non-U.S. persons reasonably believed to be abroad,19 and applications regarding the targeting of

8 S. Res. 21, 121 CONG. REC. 1432 (Jan. 27, 1975).
9 II Final Report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence
Activities, Intelligence Activities and the Rights of Americans 1 (1976).
10 See Foreign Intelligence Surveillance Act of 1978, P.L. 95-511, 92 Stat. 1783.
11 See United States v. Cavanagh, 807 F.2d 787, 791 (9th Cir. 1987) (Kennedy, J.) (“[Appellant] ... appears to suggest
that the FISA court is not properly constituted under [A]rticle III because the statute does not provide for life tenure on
the FISA court. This argument has been raised in a number of cases and has been rejected by the courts. We reject it as
well.”); In re Kevork, 634 F. Supp. 1002, 1014 (C.D. Cal. 1985) (“The FISA court is wholly composed of United States
District Court judges, who have been appointed for life by the President, with the advice and consent of the Senate, and
whose salaries cannot be reduced. The defendants’ contentions that because of their limited term on the FISA court,
these judges lose their Article III status, has no merit.”); United States v. Megahey, 553 F. Supp. 1180, 1197 (E.D.N.Y.
1180) (same); United States v. Falvey, 540 F. Supp. 1306, 1313 n.16 (E.D.N.Y. 1982) (same); In re Release of Court
Records, 526 F. Supp. 2d 484, 486 (FISA Ct. 2007) (“Notwithstanding the esoteric nature of its caseload, the FISC is
an inferior federal court established under Article III.”).
12 50 U.S.C. § 1803(a)(1).
13 In re Release of Court Records, 526 F. Supp. 2d 484, 487 (FISA Ct. 2007).
14 92 Stat. 1788.
15 50 U.S.C. § 1803(a).
16 Id. § 1822(c).
17 Id. § 1842(a)(1).
18 Id. § 1861(b)(1).
19 Id. § 1881a.
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U.S. persons reasonably believed to be located abroad.20 The FISA Court of Review has
jurisdiction to “review the denial of any application” for electronic surveillance and or physical
searches.21 Additionally, the Court of Review has jurisdiction to review “tangible things” orders
appealed by either the government or a person receiving such a production order.22
Judges and Staff of the FISA Courts
The FISC is composed of 11 district court judges selected by the Chief Justice from at least seven
of the regional judicial circuits.23 Of these 11, at least 3 must reside within 20 miles of the District
of Columbia.24 Unlike judges appointed to traditional Article III courts, FISA judges are not
selected via presidential appointment and Senate confirmation, but are instead “designated” to
those positions by the Chief Justice of the Supreme Court.25 Pursuant to the FISC’s rules, the
presiding judge of the FISC is selected by the Chief Justice.26 The FISA Court of Review is
composed of three district court or court of appeals judges also designated by the Chief Justice.27
The Chief Justice also selects the presiding judge of the Court of Review.28 Judges of both courts
serve one term of seven years and are not eligible for a second term.29 In addition to the judges,
the FISC has a staff of five full-time legal advisors with expertise in foreign intelligence issues.30
These legal advisors are said to conduct a thorough “vetting” of all applications before the
government presents them formally to the FISC judges.31
Operations of the FISA Courts
In light of the sensitive nature of its docket, the FISA courts operate largely in secret and in a non-
adversarial fashion.32 Court sessions are held behind closed doors, are generally held ex parte
with the government as the only party presenting arguments to the court, and rarely are its
opinions released.33 As noted by the FISC, whereas “[o]ther courts operate primarily in public,

20 Id. §§ 1881b(a), 1881c(a).
21 Id. § 1803(b). The FISA Court of Review does not have jurisdiction to review pen register/trap and trace orders. See
DAVID KRIS & DOUGLAS WILSON, NATIONAL SECURITY INVESTIGATIONS AND PROSECUTIONS § 5.1 (2012).
22 50 U.S.C. § 1861(f)(3).
23 Id. § 1803(a)(1).
24 Id.
25 Id.
26 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT, RULES OF PROCEDURE 4 [hereinafter FISC RULES OF
PROCEDURE].
27 50 U.S.C. § 1803(b).
28 Id. § 1803(d).
29 Id. § 1803(d).
30 See LIBERTY AND SECURITY IN A CHANGING WORLD: REPORT AND RECOMMENDATIONS OF THE PRESIDENT’S REVIEW
GROUP ON INTELLIGENCE AND COMMUNICATIONS TECHNOLOGY 201 (2013) [hereinafter REPORT OF PRESIDENT’S REVIEW
GROUP ON INTELLIGENCE].
31 Strengthening Privacy Rights and National Security: Oversight of FISA Surveillance Programs: Hearing Before the
S. Comm. on the Judiciary, 113th Cong. 1 (2013) [hereinafter FISA Hearing] (answers of Sr. U.S. Dist. Judge James G.
Carr), available at http://www.judiciary.senate.gov/resources/documents/113thCongressDocuments/upload/
073113QFRs-Carr.pdf.
32 See 50 U.S.C. § 1805(a) (mandating that FISC orders are issued ex parte).
33 In re Release of Court Records, 526 F. Supp. 2d 484, 488 (FISA Ct. 2007).
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with secrecy the exception[,] the FISC operates primarily in secret, with public access the
exception.”34 That being said, there are several instances where non-governmental parties have
appeared before the FISC.35
Generally, each of the 11 FISC judges sits for a one week period in a secure courtroom in a
federal courthouse in Washington, D.C. on a rotating basis.36 The judge on duty each week is
aptly referred to as the “duty judge.”37 Additionally, the three FISC judges who reside in the
District of Columbia, or if they are unavailable, other FISC judges as may be designated by the
Chief Judge of the FISC, comprise a pool which has jurisdiction to review petitions filed under §
215 of the USA PATRIOT Act and § 702 of FISA.38 Applications submitted to the FISC are heard
by a single judge, and if denied, cannot be heard by another judge of the FISC, except when
sitting en banc.39
The application process generally begins when the government submits a “read copy” of its
proposed application to the FISC, which, pursuant to FISC rules, must be submitted seven days
before the government files a formal application.40 In many instances, the legal advisors or the
FISC judges will have questions about these read copies,41 and will often have conversations with
the government’s attorneys—generally, attorneys from the Office of Intelligence of the National
Security Division of the Department of Justice—to seek additional information or raise concerns
about the application.42 The legal advisors will then prepare a written memorandum for the duty
judge, identifying any weaknesses or flaws in the government’s submissions.43 The duty judge
will review the memorandum and make an initial determination of how he is inclined to resolve
the application. This may include a determination that the application will be approved without a
hearing, that additional information is required from the government, that conditions may be
placed on the application, or that a hearing is required.44 Based on the judge’s response, the
government then decides whether to submit a formal application. In some instances, the questions
raised by the judges or legal advisors may result in the withdrawal or non-submission of the final
application.45 If the judge denies a formal application, he must prepare a statement of reasons of
his decision.46

34 Id.
35 In 2002, the FISA Court of Review accepted amicus curiae briefs from the American Civil Liberties Union (ACLU)
and the National Association of Criminal Defense Lawyers. See In re Sealed Case, 310 F.3d 717, 719 (FISA Ct. Rev.
2002).
36 KRIS & WILSON, supra note 21, at § 5.3; Letter from Reggie B. Walton, Presiding Judge, United States Foreign
Intelligence Surveillance Court, to Senator Patrick J. Leahy, Chairman, Senate Committee on the Judiciary 1 (July 29,
2013) [hereinafter Walton Letter], available at http://www.uscourts.gov/uscourts/courts/fisc/chairman-leahy-letter-
131011.pdf.
37 Walton Letter, supra note 36, at 1.
38 50 U.S.C. § 1803(e).
39 Id. § 1803(a)(1).
40 FISA Hearing, supra note 31, at 4 (answers of Sr. U.S. Dist. Judge James G. Carr), FISC RULE OF PROCEDURE 9(a).
41 FISA Hearing, supra note 31, at 4 (answers of Sr. U.S. Dist. Judge James G. Carr).
42 Walton Letter, supra note 36, at 2 & n.3.
43Id. at 2.
44 Id. at 2-3.
45 FISA Hearing, supra note 31, at 4 (answers of Sr. U.S. Dist. Judge James G. Carr).
46 50 U.S.C. § 1803(a)(1).
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A hearing regarding an application can occur in several situations.47 The FISC judge may
determine that a hearing is needed before deciding to issue an application. Alternatively, the
government may request a hearing to challenge conditions that the judge has stated he would
place on the approval of the application. Additionally, the FISC may, on its own initiative, or
upon the request of the government in any proceeding, or a party in any proceeding under § 215
or § 702, hold a hearing or rehearing en banc.48 An en banc panel consists of all the judges that
constitute the FISC.49 An en banc panel will be convened when ordered by a majority of the FISC
judges upon a determination that “(i) the en banc consideration is necessary to secure or maintain
uniformity of the court’s decisions; or (ii) the proceeding involves a question of exceptional
importance.”50 An initial hearing, as opposed to a rehearing, will be heard en banc only if the
matter “is of such immediate and extraordinary importance that initial consideration” is necessary
and feasible “in light of applicable time constraints.”51
Upon the denial of any application for electronic surveillance or physical searches, the
government may request review from the FISA Court of Review.52 If the court determines that the
application was properly denied, it “shall immediately provide for the record a written statement
of each reason for its decision.”53 The government may then file for a writ of certiorari to have
such a denial reviewed by the Supreme Court.54 The Court of Review also has jurisdiction to
review a petition by either the government or anyone receiving an order for the production of
“tangible things” to affirm, modify, or set aside a FISC order.55 The Court of Review must
provide a written opinion of the reasons for its decision, and upon petition by the government or
the entity receiving the production order transmit the record to the Supreme Court, which has
jurisdiction to review such decision.56
Congress’s Power to Regulate the Practice and
Procedures of Federal Courts
Several congressional proposals attempting to reform United States foreign intelligence gathering
efforts are aimed at changing the underlying practices of the FISC and FISA Court of Review. For
example, some have suggested either explicitly permitting or mandating that the FISC hear from
an amicus curiae or “friend of the court.”57 Others have proposed mandating en banc panels of
the FISC.58 Still others have suggested altering the voting rules of the FISC in an apparent attempt

47 See Walton Letter, supra note 36, at 3.
48 Id. § 1803(a)(2)(A).
49 Id. § 1803(a)(2)(C).
50 Id. § 1803(a)(2)(A).
51 FISC RULE OF PROCEDURE 46.
52 Id. §§ 1803(b), 1822(d).
53 Id. § 1803(b).
54 Id.
55 Id. § 1861(f)(3).
56 Id.
57 See infra notes 119-120, 133-134 and accompanying text.
58 See infra note 160 and accompanying text.
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to create a higher threshold for government surveillance.59 Before delving into the specific legal
questions prompted by such proposals, however, it is important to first explore the underlying
legal principles animating the extent to which Congress can regulate an Article III court’s
practices and procedures.60 The starting point for that discussion is the nature of a federal court’s
power, which stems from the Constitution, statutory law, and federal common law.
A federal court’s power emanates first and foremost from the Constitution. Specifically, Article
III of the Constitution vests the “judicial power” of the United States in the Supreme Court and
any inferior courts established by Congress.61 Supreme Court case law has interpreted the
judiciary’s authority to consist of three primary elements. First, the judicial power encompasses
the power to interpret laws. As stated in Federalist No. 78 and later echoed in Marbury v.
Madison: “The interpretation of the law is the proper and peculiar province of the courts.”62
Nonetheless, as the Supreme Court had noted, the judicial branch is not the only branch that
interprets the law, as the President must necessarily interpret laws in executing them, and
Congress must necessarily engage in legal interpretation when enacting legislation.63
Accordingly, there is a second aspect of Article III judicial power, and it centers on when a court
exercises the power to say what the law means. Specifically, a federal court exercises its authority
in the context of certain “cases” or “controversies.”64 The “cases” or “controversies” language of
Article III connotes a source of authority for federal courts such that Article III courts are
empowered to not “merely ... rule on cases, but to decide them, subject to review only by superior
courts in the Article III hierarchy.... ”65 Put another way, the “judicial power” of Article III entails
a power to render final, “dispositive judgments” in particular cases and controversies.66 Third, the
structural protections the Constitution provides to courts suggest another distinct aspect regarding
the federal judicial power. Section one of Article III stipulates that all federal judges in “good
behaviour” shall have lifetime tenure and that their salary cannot be diminished within their term
of office.67 The purpose of these provisions is to ensure that federal courts operate free from
interference from the political branches in order to, in the words of Alexander Hamilton, “secure
a steady, upright, and impartial administration of the laws.”68

59 See infra note 188 and accompanying text.
60 The term “procedure” differs from a substantive change in law in that the former is in no way “determinative” as to
the ultimate “outcome” of a proceeding at the beginning of litigation. See Guaranty Trust Co. v. York, 326 U.S. 99, 109
(1945).
61 See U.S. CONST. art. III, § 1.
62 See THE FEDERALIST NO. 78 (Alexander Hamilton). In Marbury, Chief Justice John Marshal famously declared: “It is
emphatically the province and duty of the judicial department to say what the law is.” 5 U.S. 137, 177 (1803).
63 See United States v. Nixon, 418 U.S. 683, 703 (1974) (“In the performance of assigned constitutional duties each
branch of the Government must initially interpret the Constitution.”).
64 U.S. CONST. art. III, § 2, cl. 1.
65 See Plaut v. Spendthrift Farm, 514 U.S. 211, 219 (1995). The “case-or-controversy” language is most commonly
cited not as a source of judicial authority, but as a “fundamental limit[]” on the jurisdiction of federal courts such that a
federal court cannot exercise its power unless it is founded upon the facts of a controversy between truly adverse
parties. See Allen v. Wright, 468 U.S. 737, 750 (1984).
66 See Plaut, 514 U.S. at 219 (quoting Frank Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 926
(1990)).
67 U.S. CONST. art. III, § 1.
68 THE FEDERALIST No. 78; see also N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60 (1982) (“[O]ur
Constitution unambiguously enunciates a fundamental principle—that the ‘judicial Power of the United States’ must be
reposed in an independent Judiciary. It commands that the independence of the Judiciary be jealously guarded, and it
provides clear institutional protections for that independence.”).
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While the Constitution provides federal courts the “capacity” to exercise their power in certain
cases, an act of Congress is “require[d] ... to confer” authority to a given Article III court,
meaning that statutory law is another source of a federal court’s power.69 Article I of the
Constitution provides Congress with the discretion to create inferior tribunals to the Supreme
Court.70 As a “necessary and proper” function of carrying into execution that power and the
“[p]owers vested by [the] Constitution” in the judiciary, Congress can authorize the courts to
“carry[] into execution all the judgments which the judicial department has the power to
pronounce.”71 In this vein, provisions codified in Title 28 of the United States Code empower the
federal courts to do a host of activities, such as being able to hear disputes based on “federal
questions”72 or assess certain fees to litigants.73
In addition to the powers bestowed on federal courts through Article III and certain statutory
provisions, the Supreme Court has long recognized that the federal judiciary retains certain
“inherent powers” or “implied powers” that are “necessary to the exercise of all others.”74 A
federal court’s inherent powers are not governed by “rule or statute but by the control necessarily
vested in the courts to manage their own affairs so as to achieve the orderly and expeditious
disposition of case.”75 In some sense, a federal court’s inherent power can be conceptualized as a
type of federal common law where a judge adopts practices and procedures as a gap-filling
measure because the existing statutes and rules are insufficient.76 Nonetheless, the Supreme Court
has recognized that a court’s inherent powers are not exclusively exercised due to oversights by
Congress or the rulemaking bodies, but instead inhere to broadly allow a federal court to properly
function as an institution.77
Given the three central sources of power for the federal judiciary—the Constitution, statutory law,
and federal common law—the issue that remains is to what extent can Congress restrict or
regulate a court’s power by prescribing rules of practice and procedure. As a starting point, the
Supreme Court has recognized that Congress has “undoubted power to regulate the practice and
procedure of federal courts.”78 As Chief Justice Warren noted in Hanna v. Plumer, the
“constitutional provision for a federal court system (augmented by the Necessary and Proper

69 See Kline v. Burke Constr. Co., 260 U.S. 226, 234 (1922).
70 U.S. CONST. art. I, § 8, cl. 9.
71 See Wayman v. Southard, 10 Wheat. 1, 22 (1825).
72 28 U.S.C. § 1331.
73 See, e.g., 28 U.S.C. § 1923.
74 United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812).
75 Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). For example, courts have power over admission to the bar,
see Ex Parte Burr, 22 U.S. 529 (1829), the ability to vacate a judgment when a fraud is perpetrated on the court, see
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), the ability to control their own dockets, Landis v.
North Am. Co., 299 U.S. 248, 254 (1936), the ability to dismiss cases for a failure to prosecute, Link, 370 U.S. at 629-
30, and the power to impose sanctions on an attorney. See Eash v. Riggins Trucking, 757 F.2d 557, 559 (1985).
76 See Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (“At the very least, the inherent power must continue to exist
to fill in the interstices.”).
77 See Ex parte Peterson, 253 U.S. 300, 312 (1920) (holding that courts possess “inherent powers to provide themselves
with appropriate instruments required for the performance of their duties.”); see also Hudson, 11 U.S. at 34 (“Certain
implied powers must necessarily result to our Courts of justice from the nature of their institution.”); Young v. United
States ex rel. Vuiton et Fils S.A., 481 U.S. 787, 821 (1987) (Scalia, J., concurring) (recognizing that “the Legislative,
Executive, and Judicial Branches must each possess those powers necessary to protect the functioning of its own
processes.”).
78 Sibbach v. Wilson & Co., 312 U.S. 1, 9 (1941).
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Clause) carries with it congressional power to make rules governing the practice and pleading in
those courts.”79 And, indeed, Title 28 includes numerous provisions through which Congress
mandates how the federal judiciary conducts its business—from how many Justices sit on the
Supreme Court,80 to what constitutes a quorum on the Court,81 to what types of evidence can be
admitted into a federal court proceeding,82 to rules of precedence among federal district court
judges.83 Accordingly, the Court has interpreted Congress to have the power to promulgate
mandatory rules of procedure that Article III courts have “no more discretion to disregard ... than
they do to disregard constitutional provisions.”84 And Congress’ power even extends to regulate
the inherent powers of a court.85
Nonetheless, although some have described Congress’s power over the federal judiciary’s
practices to be “plenary” in nature,86 the Supreme Court has recognized that Congress’s authority
to prescribe procedural rules for federal courts is not absolute.87 Specifically, Congress’s power
over procedure cannot extend so far as to erode functions of the federal judiciary that are at the
heart of the Article III judicial power—namely the ability to independently and impartially
resolve a case-or-controversy with finality.88 In other words, Congress cannot erode the “essential
attributes of the judicial power” in the Article III courts.89 As a consequence, Congress cannot
require a court to issue advisory opinions on matters of legal concern, as such a rule would
require the judiciary to say what the law is outside of a case-or-controversy.90 Moreover, the
legislature cannot subject a federal judicial opinion to review by a non-Article III body91 or

79 380 U.S. 460, 472 (1965).
80 28 U.S.C. § 1.
81 Id.
82 See, e.g., 28 U.S.C. § 1731 (allowing admitted or proved handwriting of a person to be admissible for purposes of
comparison and determination of the genuineness of other handwriting).
83 28 U.S.C. § 136.
84 See Bank of Nova Scotia v. United States, 487 U.S. 250, 255 (1988). Under current law, general procedural
rulemaking authority has been largely delegated to the Supreme Court in the Rules Enabling Act. See 28 U.S.C. § 2072.
85 See Degen v. United States, 517 U.S. 820, 823 (1996) (“In many instances the inherent powers of the courts may be
controlled or overridden by statute or rule.”); Chambers, 501 U.S. at 47 (“It is true that the exercise of the inherent
power of lower federal courts can be limited by statute and rule.... ”).
86 See, e.g., G. Germain, Due Process in Bankruptcy: Are the New Automatic Dismissal Rules Constitutional? 13 U. PA.
J. BUS. L. 547, 591 (Spring 2011) (“Wayman and Sibbach show that the Court has consistently recognized that the
Congress has plenary power over federal court procedure, and the courts have only secondary power to regulate when
that authority is either expressly delegated by Congress, or possibly when Congress is silent.”). In sharp contrast, others
have argued that matters of procedure are exclusively part of the judicial function. See, e.g., Linda S. Mullenix,
Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 77 MINN. L. REV. 1283 (1993).
87 See Plaut v. Spendthrift Farm, 514 U.S. 211, 218 (1995) (identifying “two types of legislation that require federal
courts to exercise the judicial power in a manner that Article III forbids”); see generally F. Frankfurter & J.M. Landis,
Power of Congress over Procedure in Criminal Contempt in ‘Inferior’ Federal Courts: A Study in Separation of
Powers, 37 HARV. L. REV. 1010, 1017 (1924).
88 See Plaut, 514 U.S. at 218; see generally See Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the
Structural Constitution, 86 IOWA L. REV. 735, 742 (2001) (contending that Congress cannot legislate in a way that
destroys powers “indispensable to the integrity and independent functioning of the judiciary.”); William F. Ryan, Rush
to Judgment: A Constitutional Analysis of Time Limits on Judicial Decisions, 77 B.U. L. REV. 761, 782-98 (1997)
(arguing that courts’ power trumps Congress’s only where Congress has attempted to interfere unduly with courts’
inherent power to render decisions in contested cases).
89 See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 77 n.29 (1982).
90 See United States v. Johnson, 319 U.S. 302, 305 (1943) (dismissing as nonjusticiable a suit brought at the request of,
and directed and financed by, the defendant because “it [was] not in any real sense adversary”).
91 See Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792).
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retroactively command federal courts to reopen their final judgments, as such procedures would
prevent an Article III court from ruling with finality and issuing dispositive judgments.92
Likewise, Congress cannot enact laws that erode the decisional or analytical independence of a
federal court. In this regard, the Court has struck down congressional enactments that interfere
with the judicial decision-making process as to effectively decide the outcome of a given case93 or
essentially plunge the federal judiciary into a political role.94 In short, Article III places some
limits on Congress’s relatively broad authority to regulate the practice and procedures of federal
courts. With these principles in mind, this report turns to several proposals attempting to regulate
the practice of the FISA courts.95
FISA Reform and Amicus Curiae
FISA proceedings primarily involve only one party, as the FISC is authorized to issue orders
approving of electronic surveillance,96 certain physical searches,97 the use of a pen register or a
trap and trace device,98 or the access to certain business records for foreign intelligence and
international terrorism investigations99 upon a proper showing made in an application by a federal
officer. Recent controversies over the nature of the government’s foreign surveillance activity
have prompted the argument that the ex parte nature of the judiciary’s review of government
surveillance requests under FISA deprives the court from hearing a “researched and informed
presentation of an opposing view.”100 In this vein, while some have suggested formally
establishing an office for a permanent public interest advocate to represent “the interests of those
whose rights of privacy or civil liberties might be at stake,”101 others have proposed allowing or
even requiring the FISC to, on a temporary or ad hoc basis, hear from certain individuals or
interests groups who, as “friends of the court” or amici curiae, would brief the court on the
privacy or civil liberty interests implicated by a government application.102 Proposals purporting
to regulate the process by which the FISC hears from amici potentially raise several questions

92 See Plaut, 514 U.S. at 219.
93 See United States v. Klein, 80 U.S. (13 Wall.) 128, 146 (1872).
94 See N. Pipeline Constr. Co., 458 U.S. at 60; see also Martin H. Redish, Federal Judicial Independence:
Constitutional and Political Perspectives, 46 MERCER L. REV. 697, 715 (1995) (noting that Klein stands for the
principle that Congress cannot “interfer[e] wih the proper performance of the judicial function by effectively
conscripting the judiciary as an unwilling coconspirator in what amounts to the imposition of a legal fraud on the
public.”).
95 The federal courts have consistently considered the FISC an Article III court. See cases cited at supra note 11.
96 See 50 U.S.C. § 1804.
97 See id. § 1824.
98 See id. § 1843.
99 See id. § 1861.
100 REPORT OF PRESIDENT’S REVIEW GROUP, supra note 30, at 203-04; see also ACLU v. Clapper,—F. Supp. 2d—, 2013
WL 6819708 at *27 (S.D.N.Y. Dec. 27, 2013) (“[The FISC’s] ex parte procedures are necessary to retain secrecy but
are not ideal for interpreting statutes. This case snows how FISC decisions may affect every American-and perhaps,
their interests should have a voice in the FISC.”).
101 REPORT OF PRESIDENT’S REVIEW GROUP, supra note 30, at 204; see also U.S.A. FREEDOM Act, H.R. 3361, 113th
Cong. § 401 (1st Sess. 2013); Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(a). (1st
Sess. 2013). For a discussion regarding the legal issues associated with appointing a permanent public interest advocate
for FISC proceedings, see Nolan, et al., supra note 3.
102 See FISA Improvements Act of 2013, S. 1631, 113th Cong. § 4 (1st Sess. 2013); Ensuring Adversarial Process in the
FISA Court Act, H.R. 3159, 113th Cong. § 2(b)(5) (1st Sess. 2013).
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about their legal necessity and the extent to which Congress can mandate that a federal court hear
from a particular party.
Background on the Amicus Curiae
Before delving into these issues, it is first important to note the historical origins of the amicus
and the unique role that amicus curiae play in the federal courts. Amicus curiae, a Latin term
literally meaning “friend of the court,” has its roots in Roman law, where an amicus entailed a
judicially appointed attorney who served to advise or assist a court in the disposition of cases by
providing non-binding opinions on points of law with which the court was unfamiliar.103 The
Roman amicus curiae became a forerunner for the Anglo-American amicus device.104 According
to English common law pre-dating the American Revolution, a trial or appellate court could
request or permit in its “uncontrolled discretion” an amicus to inform the court about various
aspects of the law.105 In particular, an amicus functioned as an “impartial assistant to the
judiciary,”106 as an amicus’s “principal role” under the English common law was to “assist judges
in avoiding error.”107 With the continuation of English judicial traditions in the United States,108
American courts began embracing the use of amici in the early nineteenth century.109
Over time, federal courts have accepted an increasingly broad and flexible role for amici.110 For
example, the Supreme Court has generally recognized the power of Article III courts to appoint
an amicus curiae “to represent the public interest in the administration of justice.”111 Some
federal courts have allowed amici to participate in an overtly partisan or adversarial nature.112
Other courts have limited when an amicus can proceed to instances where the amicus would be
offering (1) a different perspective than the named parties;113 (2) impartial information on matters

103 See Comment, The Amicus Curiae, 55 NW. U. L. REV. 469, 469 n.3 (1960) (“Under Roman law, a judge could
appoint an attorney to act as consilium and advise and assist in the disposition of the case. His opinion was not binding,
but rather served to enlighten the court on points of law with which it was not familiar.”).
104 See Michael K. Lowman, The Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave?, 41
AM. U. L. REV. 1243, 1244 n.4 (1992).
105 See Comment, supra note 103, at 469-70.
106 See Lowman, supra note 104, at 1244.
107 Reagan Wm. Simpson & Mary R. Vasaly, THE AMICUS BRIEF: HOW TO BE A GOOD FRIEND OF THE COURT (2d Ed.) 1
(2004 2d ed) (citing The Protector v. Geering, Hardres 85, 145 Eng. Rep. 394 (1656)).
108 See MARY K. BONSETTEL TACHAU, FEDERAL COURTS IN THE EARLY REPUBLIC 77 (1978) (“The most distinctive
aspect of [early federal court] procedures was their rigorous adherence to the antiquated technicalities of English
law.”). Moreover, Article III of the U.S. Constitution allots the “judicial power” to the Supreme Court and any inferior
courts Congress may create, aligning the federal judicial power with that of the “English legal tradition.” Ariz.
Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1441 (2011).
109 It should be noted, however, an amicus did “not make [an] appearance in the Supreme Court (or federal courts
generally) until after 1820.” See Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 YALE
L.J. 694, 699 (1963) (noting that federal courts’ initial use of amicus curiae occurred in the 1820s with the appearance
of Henry Clay on behalf of the state of Kentucky in the case of Green v. Biddle).
110 See id. at 702-204 (describing the shift whereby the amicus no longer was reserved to impartial advocacy before
federal courts).
111 See Universal Oil Products Co. v. Root Rfg. Co., 328 U.S. 575, 581 (1946) (Frankfurter, J.).
112 See United States v. Michigan, 940 F.2d 143, 165 (6th Cir. 1991) (“Over the years, however, some courts have
departed from the orthodoxy of amicus curiae as an impartial friend of the court and have recognized a very limited
adversary support of given issues through brief and/or oral argument.”) (emphasis in original).
113 See Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997) (Posner, J., in chambers)
(opining that the “vast majority of amicus curiae briefs are filed by allies of litigants” and “[t]hey are an abuse.”).
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of public interest;114 or (3) observations on legal questions, as opposed to “highly partisan ...
account[s] of the facts.”115 Nonetheless, the “classic role of amicus curiae” involves “assisting in
a case of general public interest, supplementing the efforts of counsel, and drawing the court’s
attention to law that escaped consideration.”116 Regardless of what type of party constitutes a
proper amicus, participation remains a privilege generally governed by the inherent authority of a
court.117 Put another way, absent a statute or rule, under federal common law there is typically
“no right to compel [a] court to permit one to appear as amicus curiae.”118
Allowing the FISC to Hear from an Amicus Curiae
Several have suggested that Congress should establish a formal mechanism whereby the FISC, in
its discretion, could solicit the independent views of an amicus curiae in appropriate cases.119 For
example, the FISA Improvements Act, which was approved by the Senate Select Committee on
Intelligence (SSCI) in October of 2013, if enacted would authorize the FISC and the FISA Court
of Review to designate, when needed, one or more individuals to serve as amicus curiae “to assist
the court in the consideration of” certain government applications made under FISA, such as
those that present a “novel or significant interpretation of the law.”120 The SSCI bill provides
examples of the needed expertise to be an amicus curiae, such as being an “expert on privacy and
civil liberties,” and outlines the duties for a FISA amicus, in that the FISC’s “friend” may assist
the court in reviewing “any application, certification, petition, motion, or other submission that
the court determines is relevant to the duties assigned by the court.”121
Congressional regulation of how the FISA courts hear from amici generally does not appear to
raise serious constitutional questions. As noted earlier, the Supreme Court has stated that
“Congress has undoubted power to regulate the practice and procedure of federal courts,”122
which would presumably include the power to prescribe regulations with respect to amici that
appear before a federal court. Indeed, Congress has in the past enacted several laws that allow

114 See Michigan, 940 F.2d at 164; see also Miller-Wohl, Inc. v. Commissioner of Labor & Indus., Mont., 694 F.2d
203, 204 (9th Cir. 1982) (describing amicus curiae’s role as directing court on matters of public interest to law); see
generally 4 Am. Jur. 2d Amicus Curiae § 1 (1995) (describing traditional amicus curiae as neutrally providing
information to court).
115 See New England Patriots Football Club, Inc. v. University of Colo., 592 F.2d 1196, 1198 n.3 (1st Cir. 1979).
116 See Miller-Wohl Co. v. Comm’r of Labor & Indus., 694 F2d 203, 204 (9th Cir. 1982).
117 See Martinez v. Capital Cities/ABC-WPVI, 909 F. Supp 283, 286 (E.D. Pa. 1995); see also Community Ass’n for
Restoration of Env’t (CARE) v. DeRuyter Bros. Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999) (“Proceeding
amicus is a ‘privilege’ that ‘rests in the discretion of the court which may grant or refuse leave according as it deems
the proffered information timely, useful, or otherwise.’”) (internal citations omitted).
118 See 3B C.J.S. Amicus Curiae § 3.
119 See, e.g., Continued Oversight of the Foreign Intelligence Surveillance Act, Before the S. Comm. on the Judiciary,
113th Cong. 9 (October 2, 2013) (joint statement of James R. Clapper, Director of Nat’l Intelligence, and General Keith
B. Alexander, Director of Nat’l Security Agency) (“Therefore, we would be open to discussing legislation authorizing
the FISC to appoint an amicus, at its discretion, in appropriate cases ... ”); Peter P. Swire, The System of Foreign
Intelligence Surveillance Law, 72 GEO. WASH. L. REV. 1306, 1365 (2004) (arguing that the lack of a “statutory
mechanism ... permitt[ing] amici” to participate in the FISA appellate process demonstrated a “clear gap in existing
procedures.”).
120 See FISA Improvements Act of 2013, S. 1631, 113th Cong. § 4 (1st Sess. 2013).
121 Id.
122 See Sibbach, 312 U.S. at 9-10.
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courts to hear from a particular amici.123 Proposals like the FISA Improvements Act, which
simply authorizes a court to appoint from a broad range of qualified individuals an amicus to
assist in the proceedings, impose no firm mandates on the FISC that would threaten the “essential
attributes of the judicial power,”124 the constitutional limit to Congress’s broad power to regulate
federal practice and procedure.125 Instead of allowing “encroachment or aggrandizement of one
branch at the expense of the other,” the hallmark of a separation of powers violation,126 proposals
that provide the FISA courts with formal statutory authority to appoint amici arguably enhance
the power of the federal courts without simultaneously detracting from the power of the political
branches.127
While providing broad statutory authority to the FISA courts allowing them to appoint amici
likely does not raise serious constitutional issues, a question remains as to whether such a statute
is needed as a legal matter. As noted above, the ability of a court to appoint an amicus curiae to
assist in the judicial proceedings has a long history that predates the Constitution,128 and federal
courts have held that they possess inherent authority to appoint amici and permit the filing of
briefs by them.129 In this vein, both the FISC130 and the FISA Court of Review131 have accepted
amicus briefs during their proceedings. While formally codifying the FISA courts’ authority in
statute could arguably clarify the scope of the courts’ authority with respect to amici and
encourage the courts to exercise that authority more frequently,132 it is unclear what legal
difference a codification of the amicus authority ultimately makes, as the statutory authority is

123 See, e.g., 5 U.S.C. § 612(b) (“The Chief Counsel for Advocacy of the Small Business Administration is authorized
to appear as an amicus curiae any action brought in a court of the United States to review a rule.”); 15 U.S.C. § 3207
(“The Secretary [of Energy] may participate as an amicus curiae in any judicial review of an action arising under [the
National Energy Conservation and Production Act’s provisions on natural gas].”); 16 U.S.C. § 2633 (“[T]he Secretary
[of Energy] may also participate as an amicus curiae in any review by any court of an action arising under [the Public
Utility Regulatory Policies Act of 1978].”); 29 U.S.C. § 792(e)(2)(B) (“The executive director [of Architectural and
Transportation Barriers Compliance Board] is authorized ... to appear as amicus curiae in any court of the United States
or in any court of a State in civil actions that relate to this section or to the Architectural Barriers Act of 1968.”).
124 See Northern Pipeline, 458 U.S. at 77 n.29 (quoting Crowell v. Benson, 285 U.S. 22, 51 (1932)).
125 See supra “Congress’s Power to Regulate the Practice and Procedures of Federal Courts,” at pp. 6-9.
126 See Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam).
127 But see infra p.13 (noting that the statutory authority provided to the court may be merely duplicative of the court’s
inherent authority).
128 See supra “Background on the Amicus Curiae,” pp. 10-11.
129 See United States v. Providence Journal Co., 485 U.S. 693, 704 (1988) (“[I]t is well within this Court’s authority to
appoint an amicus curiae to file briefs and present oral argument in support of that judgment.”); see also Resort
Timeshare Resales, Inc. v. Stuart, 764 F. Supp. 1495, 1500-01 (S.D. Fla. 1991) (“The district court has the inherent
authority to appoint amici curiae, or ‘friends of the court,’ to assist it in a proceeding.”); James Square Nursing Home,
Inc. v. Wing, 897 F. Supp. 682, 683 n.2 (N.D.N.Y. 1995) (“The district court has broad inherent authority to permit or
deny an appearance as amicus curiae in a case.”).
130 See, e.g., In re Orders of this Court Interpreting Section 215 of the Patriot Act, No. 13-02, (FISA Ct. Dec. 5, 2013),
available at http://www.uscourts.gov/uscourts/courts/fisc/br13-02-08-09-order-131205.pdf (granting motion of the
Reporters Committee for Freedom of the Press a group of 25 media organizations to file a brief as amici curiae).
131 See, e.g., In re Sealed Case, 310 F.3d 717, 719 (FISA Ct. Rev. 2002) (“Since the government is the only party to
FISA proceedings, we have accepted briefs filed by the American Civil Liberties Union (ACLU) and the National
Association of Criminal Defense Lawyers (NACDL) as amici curiae.”).
132 Codifying a court’s inherent authority into a rule or statute is not uncommon. For example, while “commentators
and decisional authority generally agree that courts have inherent authority to appoint expert witnesses,” Federal Rule
of Evidence 706 formally codifies this authority and prescribes “in detail the procedure to be followed.” See 3
CHRISTOPHER MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE, § 367 (2d ed. 1994).
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largely duplicative of the authority the FISA courts already possess as a matter of their inherent
power.
Requiring the FISC to Hear from an Amicus Curiae
Not all of the proposals attempting to regulate the FISA’s courts’ amicus authority leave the
decision to appoint a friend of the court up to the discretion of the FISC or the FISA Court of
Review.133 Instead, several proposals contemplate requiring the FISA courts to hear from amici.134
More serious legal questions could potentially arise from congressional attempts to mandate—as
opposed to permit—an Article III court to hear from an amicus.135 First, it can be argued that a
“mandatory amicus” proposal potentially conflicts with the constitutional norm that Article III
courts, like the FISC, must have some degree of autonomy or independence in controlling their
internal processes. A mandate that a federal court hear the views of an amicus in certain cases,
contrasts with the historic amicus tradition which “hinge[d]” on the principle of providing the
court with considerable flexibility and discretion as to when and how it may rely on a third party
friend.136 If an amicus is viewed in the Anglo-American common law tradition as being an
extension of the court itself,137 one could liken a congressional mandate as to who and when a
federal court must hear from an amicus to a similar mandate as to who a court must hire as a
member of the court’s own staff.138 Such a restriction on an inherent judicial power could
arguably limit the ability of a federal court to maintain its independence from the political
branches, implicating a core Article III norm.

133 See, e.g., FISA Court Reform Act of 2013, S. 1467, 113th Cong. (1st Sess. 2013), § 5(a)(5)(A) (requiring the FISA
Court of Review to “accept amicus curiae briefs from interested parties in all mandatory reviews.”).
134 Id.; see also Ensuring Adversarial Process in the FISA Court Act, H.R. 3159, 113th Cong. § 2(b) (1st Sess. 2013)
(requiring the FISC to hear the views of a public advocate in certain proceedings).
135 Of course, the exact nature of a “mandate” on a court may ultimately depend on a matter of judicial interpretation,
making the “mandate” provide a considerable amount of judicial discretion. For example, a law that requires the FISC
to hear the views of an amicus in a case involving a “novel or significant interpretation of the law” may be viewed as
placing significant discretion with the court as to whether a particular case truly is “novel” or “significant” in nature. In
other words, while the language of a particular law may facially “require” the court to appoint an amicus in a particular
case, if the determination of whether a case fits within the mandatory category depends on a discretionary decision of
the court, the congressional provision may function much like the proposals that allow the FISC to appoint amici.
Nonetheless, for purposes of this section, it is assumed that any “mandatory amicus” proposals will be viewed, or
written in such a way, as to eliminate any discretion of the court as to whether to appoint an amici.
136 See Lowman, supra footnote 100, at 1247; see also Krislov, supra footnote 9, at 695 (“[T]he courts have from the
beginning avoided precise definition of the perimeters and attendant circumstance involving possible utilization of
[amicus]. This, of course, increases judicial discretion, while it concomitantly maximizes the flexibility of the
device.”).
137 See Lowman, supra note 100, at 1244.
138 One commentator uses the example of congressional regulation of the hiring of the number of secretaries and law
clerks for federal judges as an example of clear overreach by Congress. See Paul D. Carrington, A New Confederacy?
Disunionism in the Federal Courts, 45 DUKE L.J. 929, 972 (1996) (“To take other far-fetched examples, the Supreme
Court ought not and would not submit if Congress directed that the number of secretaries and law clerks assigned to
individual judges shall vary according to a legislated formula linking support staff to the number of dispositions each
judge achieves.”). Of course, members of a federal court’s staff, unlike the typical amicus, serve for extended terms and
participate in confidential discussions with the court. Nonetheless, congressional regulation of a federal court’s staff is,
in the words of Professor Carrington, “ludicrous,” and illustrates that there is a “core of control vested in the [a federal
court] that is beyond the constitutional reach of Congress.” Id.at 972-73. In other words, while the degree of intrusion
may admittedly be less, if a concern is raised by Congress regulating a court’s staff, a similar concern can stem from
congressional regulation of the court’s “friends.”
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Second, mandating that the FISC hear from a particular amicus may raise constitutional questions
about the nature of the amicus. The mandatory amicus proposal would functionally transform the
role of an amicus from an individual whose views are heard based on the “sound discretion of the
court[]”139 to a party who has the unfettered right to be heard from in the course of litigation. It
could be argued that such a transformation of the amicus process nearly elevates an amicus to
having the “full litigating status of a named party or a real party in interest.”140 It is generally
recognized that “[o]nly a named party or an intervening real party in interest is entitled to litigate
on the merits.”141 To the extent that the mandatory amicus proposal could be characterized as
providing an amicus with some of the rights that are traditionally exclusive to that of a party, one
could potentially argue that a mandatory amicus proposal violates Article III. The proposal does
this, according to this line of argumentation, by statutorily empowering an individual who lacks
Article III standing with the right to be heard by a federal court, forcing the judiciary to say what
the law is outside of a case or controversy between two parties with a genuine stake in the
matter.142 Indeed, a recent FISC opinion deciding whether to allow for amicus briefing in a case
noted that “most courts have recognized that the role of an amicus curiae is limited, and does not
rise to the level of a party to the litigation,”143 perhaps signaling a reluctance by the FISA courts
to affording an amicus rights equivalent to those of a named party.144
Nonetheless, such criticisms may very well be a result of the uncommon nature of a mandatory
amicus proposal as opposed to any inherent constitutional infirmity in the proposal. One may
question whether eliminating the court’s discretionary power to hear from an amicus, while a
historic power, truly erodes one of the “essential attributes of the judicial power” as encompassed
by Article III.145 While having the discretionary power to appoint amici in a federal case is an
ancient power for a court, it may be difficult to argue that such a power is “essential” to having
the FISC function in line with the Constitution’s envisioned scheme for federal courts. For

139 See Michigan, 940 F.2d at 165.
140 Id. at 165-66.
141 Id. at165-66 (emphasis added). Merely adding a party to an existing case-or-controversy does not absolve that party
from meeting Article III’s prerequisites for having standing to sue. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332
352 (2006) (rejecting that a federal court could exercise supplemental jurisdiction over a party’s claim that does not
itself “satisfy [the] elements of the Article III inquiry ... ”); see generally Flast v. Cohen, 393 U.S. 83, 99 (1968) (noting
that standing “focuses on the party” and not on the surrounding issues of the litigation); Nolan, et al., supra note 3, at
pp. 6-8, 22-24.
142 See Lowman, supra note 104, at 1288-89; see also Rio Grande Pipeline Co. v. FERC, 178 F.3d 533, 539 (D.C. Cir.
1999) (noting that an amicus who cannot satisfy the basic elements of Article III standing can do no more than seek to
contribute its views to the court and participate in oral argument if a party espousing the same views cedes its oral
argument time).
143 In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible Things, No. BR
13-158 (FISA Ct. Dec. 18, 2013), available at http://www.uscourts.gov/uscourts/courts/fisc/br13-158-Memorandum-
131218.pdf.
144 Courts have generally recognized that the “granting of near-party status to government amici is proper ... [and]
consistent with established legal principles,” see Michael J. Harris, Amicus Curiae: Friend or Foe? 5 SUFFOLK J. TRIAL
& APP. ADV. 1, 8-11 (2000), and so a mandate to allow a government amicus the right to appear before a federal court
may raise less serious legal questions than a mandate that allows private party amici an unfettered right to be heard.
Harris argues that affording a government amicus the rights normally provided to a real party in interest is consistent
with the underlying purposes of allowing friends to assist the court, in that the judiciary is apprised of the impartial
views of the law by an agent of the government representing the public interest. Id. at 7-8. It is unclear whether the
legal principles justifying a broader role for government amici apply with respect to a public advocate tasked with
providing a partisan view of the law that contrasts with the view of the executive branch. See Nolan, et al., supra note
3, at pp. 6-8, 22-24.
145 See Northern Pipeline Construction Co., 458 U.S. at 77 n.29.
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example, even if the FISA courts were required to hear from a particular amicus, the court would
not be obligated to adopt the views of the amicus or otherwise be unable to independently say
what the law means.146 Indeed, requiring the court to hear from different perspectives on an issue
arguably may ensure that the court’s judgment remains independent and impartial, aligning with
core Article III values.147 Moreover, while a mandatory amicus law would establish for the
amicus a guaranteed right to be heard by the court, such a proposal does not go so far as to embed
an amicus with the right to seek any sort of judicial relief from a federal court, such as having a
right to appeal or the right to seek discovery, which would likely raise more serious concerns with
respect to Article III standing.148
It should be noted that there have been few laws and rules that have attempted to curb the federal
judiciary’s discretionary power over the use of amici. The Federal Rules of Civil Procedure, for
example, are silent on the topic of amici curiae, leaving appointment of an amicus to be a product
of a district court’s inherent power.149 In contrast, both the Federal Rules of Appellate Procedure
and Rules of the Supreme Court of the United States do not require an amicus to obtain leave
from a court to file an amicus brief if the brief is filed on behalf of the United States, its officer or
agency, or a state.150 While such rules functionally limit the discretion of a federal court in
allowing the appearance of an amicus, each rule is a product of a decision of the Supreme Court
of the United States, which, through the Rules Enabling Act, has the power to “prescribe general
rules of practice and procedure” in federal courts.151 The federal appellate and Supreme Court
rules’ waiver of the need for government amici to obtain leave of court before appearing is both a
provision that enhances the rights of a type of amicus traditionally provided with broader
rights152—government amici—and is a restriction imposed by the judiciary on itself. In other
words, such rules may not raise the same constitutional concerns as a congressional command to
a court to appoint a private party as an amicus.
Very few statutory provisions relating to amicus curiae go so far as to mandate that a federal
court hear from a particular amicus. For example, several statutes permit certain executive branch
officials to appear as amici in certain proceedings.153 Other statutes are phrased such that they
impose a mandate on the government official in question to appear as an amicus without
imposing a similar mandate on the court.154 However, the Commodity Exchange Act provides the

146 Cf. Klein, 80 U.S. at 146.
147 See supra “Congress’s Power to Regulate the Practice and Procedures of Federal Courts,” pp. 5-9.
148 See Lowman, supra note 104, at 1280-82; see also Nolan, et al., supra note 3, at 20-24.
149 See Martinez, 909 F. Supp. at 286.
150 See FED. R. APP. P. 29(a) (“The United States or its officer or agency or a state may file an amicus-curiae brief
without the consent of the parties or leave of court.”); S. CT. R. 37(4) (“No motion for leave to file an amicus curiae
brief is necessary if the brief is presented on behalf of the United States by the Solicitor General; on behalf of any
agency of the United States allowed by law to appear before this Court when submitted by the agency’s authorized
legal representative; on behalf of a State, Commonwealth, Territory, or Possession when submitted by its Attorney
General; or on behalf of a city, county, town, or similar entity when submitted by its authorized law officer.”).
151 28 U.S.C. § 2072(a).
152 See Harris, supra note 144, at 8-11; see also Lowman, supra note 104, at 1261 (“Compared to their private
counterparts, federal or state governmental units have traditionally enjoyed greater leeway in their participation as
amicus curiae before federal courts.”).
153 See supra note 123.
154 See, e.g., 2 U.S.C. § 288e(a) (“[T]he [Senate Legal] Counsel shall ... appear as amicus curiae in the name of the
Senate ... in any legal action or proceeding pending in any court of the United States ... in which the powers and
responsibilities of Congress under the Constitution of the United States are placed at issue.”).
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Commodities Futures Trading Commission (CFTC) the “right to appear as an amicus in any
proceeding brought by a state government in federal court under that Act.”155 Another provision
in Title 5 of the U.S. Code authorizes the head of the Office of Special Counsel to appear as an
amicus in certain cases and requires a “court of the United States [to] grant the application of the
Special Counsel to appear in any such action.... ”156 While the plain language of these two laws
appear to provide a mandate on the court to hear from certain government amici, no court has
assessed the constitutionality of such a provision, leaving the constitutional status of a mandatory
amicus statute judicially unresolved.
Mandating an En Banc Panel of the FISC
In 2008, FISA was amended to explicitly permit the FISC, on its own initiative, or upon the
request of the government in any proceeding, or a party in a proceeding under § 215 or § 702, to
hold a hearing or rehearing en banc.157 An en banc panel consists of all the judges that constitute
the FISC.158 During debate of the FISA Amendments Act of 2008, lawmakers proposed
mandating that the FISC sit en banc to make legal immunity determinations regarding
telecommunication service providers who allegedly aided the federal government in surveillance
gathering activities.159 In the wake of recent revelations about the NSA’s foreign surveillance
practices, at least one commentator has revived the mandatory en banc proposal for certain
proceedings before the FISC.160 Congressionally mandating that the FISC sit en banc prompts
questions regarding the constitutionality of such proposals. Before delving into those questions, it
is first worth noting the background of en banc proceedings in federal courts.
History of En Banc Proceedings
En banc review—that is, review by all judges of a court—has its origins in the 1930s. In the wake
of the Evarts Act of 1891,161 in which Congress created the three-tiered federal court system,
growing caseloads in the appellate courts, coupled with the rise of certiorari review at the
Supreme Court, led to an increasing number of inconsistent panel decisions within a given
circuit.162 In 1938, the Ninth Circuit, faced with two conflicting panel rulings of that circuit, held
that no mechanism existed in law to resolve the conflict and opted to certify the question to the
Supreme Court.163 Two years later, the Third Circuit rejected the Ninth Circuit’s reasoning and sat
en banc to resolve the panel split.164 The Supreme Court granted certiorari to the Third Circuit’s

155 See 7 U.S.C. § 13a-2(8)(B).
156 5 U.S.C. § 1212(h)(1) (“The Special Counsel is authorized to appear as amicus curiae in any action brought in a
court of the United States related to section 2302(b)(8) or (9).”).
157 FISA Amendments Act of 2008, P.L. 110-261, § 109, 122 Stat. 2436, 2464 (codified at 50 U.S.C. § 1803(a)(2)(A)).
158 50 U.S.C. § 1803(a)(2)(C).
159 See S.Amdt. 3919, S. 2248, 110th Cong. (2d. Sess. 2008).
160 Bruce Ackerman, Surveillance and the FISA Court, LOS ANGELES TIMES, (Sept. 24, 2013),
http://articles.latimes.com/2013/sep/24/opinion/la-oe-ackerman-fisa-reform-20130924.
161 Circuit Court of Appeals (Evarts) Act of 1891, ch. 517, 26 Stat. 826 (1891).
162 See Sarah J. Berkus, Survey: A Critique and Comparison of En Banc Review in the Tenth and D.C. Circuits and
United States v. Nacchio, 86 DENV. U.L. REV. 1069, 1071 (2009).
163 Lang’s Estate v. Commissioner, 97 F.2d 867, 869 (9th Cir. 1938).
164 Commissioner v. Textile Mills Sec. Corp., 117 F.2d 62, 70-71 (3d Cir. 1940) (en banc), aff'd, 314 U.S. 326 (1941).
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ruling and unanimously affirmed in Textile Mills Security Corp. v. Commissioner that the courts
of appeals had the discretion to decide cases en banc.165 In doing so, the Supreme Court attached
special importance to the capacity of the en banc hearing to promote the finality of decisions and
to resolve internal circuit splits, as the courts of appeals “are the courts of last resort in the run of
ordinary cases.”166
Seven years later, Congress codified the result of Textile Mills in Section 46(c) of the Judicial
Code of 1948.167 The provision, as amended, states that cases in the courts of appeals shall be
heard and decided by a three-judge panel, unless a majority of the judges in regular active service
order a rehearing by the circuit sitting en banc.168 The Supreme Court subsequently interpreted
Section 46(c) to be permissive in nature, such that the courts of appeals were empowered, but not
required to sit en banc.169 In turn, the Court allowed each of the courts of appeals to “devise its
own administrative machinery to provide the means whereby a majority may order [an en banc]
hearing.”170 The framework for determining when an en banc hearing is appropriate is established
in Federal Rule of Appellate Procedure 35, which states that an en banc hearing is “not favored
and ordinarily will not be ordered” unless consideration is necessary to “secure or maintain” the
uniformity of a court’s decisions or the proceeding involves a question of “exceptional
importance.”171 In this vein, en banc rulings in the United States Courts of Appeals are a
relatively rare phenomenon.172
En banc hearings outside of the context of a federal appellate court are even more unusual, as
there is no general statutory authority for federal trial judges to reach decisions as panels and
apply those decisions as precedent for all judges in the district.173 In the late 1980s, some district
courts proceeded en banc in evaluating the constitutionality of the federal sentencing
guidelines.174 Other examples exist of district courts sitting en banc in complex criminal

165 Textile Mills Sec. Corp. v. Commissioner, 314 U.S. 326, 333-35 (1941) (“We cannot conclude, however, that the
word ‘court’ as used in those other provisions of the Judicial Code means only three judges. That would not only
produce a most awkward situation; it would on all matters disenfranchise some circuit judges against the clear
intendment of § 118.”).
166 Id.at 335.
167 Judicial Code and Judiciary Act, Pub. L. No. 80-773, § 46(c), 62 Stat. 869, 871-72 (1948) (codified at 28 U.S.C. §
46(c)).
168 28 U.S.C. § 46(c).
169 Western P. R. Corp. v. Western P. R. Co., 345 U.S. 247, 259 (1953) (“A majority may choose to abide by the
decision of the division by entrusting the initiation of a hearing or rehearing en banc to the three judges who are
selected to hear the case. On the other hand, there is nothing in § 46 (c) which requires the full bench to adhere to a rule
which delegates that responsibility to the division.”).
170 Id. at 261.
171 Fed. R. App. P. 35(a).
172 As an example of the rarity of en banc hearings, in FY2011, only 59 out 37,806 appeals terminated on the merits
after oral hearings or submission on the briefs were reviewed en banc. See ADMINISTRATIVE OFFICE OF THE UNITED
STATES COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: ANNUAL REPORT OF THE DIRECTOR, Table S-1
(2012), available at http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2012/tables/S01Sep12.pdf.
173 See Gregory C. Sisk, et al., Charting the Influences on the Judicial Mind, 73 N.Y.U.L. REV. 1377, 1500 n.172
(1998).
174 See United States v. Allen, 685 F. Supp. 827 (N.D. Ala. 1988); United States v. Bogle, 689 F. Supp. 1121 (S.D. Fla.
1988); United States v. Bolding, 683 F. Supp. 1003 (D. Md. 1988); United States v. Brittman, 687 F. Supp. 1329 (E.D.
Ark. 1988); United States v. Christman, Cr. 88-4-2 (D. Vt. Nov. 19, 1988); United States v. Gentry, Criminal No. 87-
50062-01 (W.D. La. June 22, 1988); United States v. Harris, No. 88-CR-6-B (N.D. Okl. Apr. 28, 1988); United States
v. Johnson, 68 F. Supp. 1033 (W.D. Mo. 1988); United States v. Macias-Pedroza, 694 F. Supp. 1406 (D. Ariz. 1988);
United States v. Ortega Lopez, 684 F. Supp. 1506 (C.D. Cal. 1988); United States v. Serpa, 688 F. Supp. 1398 (D. Neb.
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actions.175 Nonetheless, it remains anomalous for a court of first impression to review a matter by
all of the judges on that court.176
Legal Issues with Requiring an En Banc Panel for “Significant
Interpretations” of FISA
There does not appear to be a major constitutional question raised by legislation requiring, as
opposed to allowing, a federal court to sit en banc in certain circumstances.177 Requiring a federal
court to sit en banc does not limit the ability of the court to independently adjudicate a matter to
finality.178 Instead, a provision mandating more frequent use of the en banc process would merely
require certain decisions to be made by a majority of the FISC instead of a single judge. Given
this, it would appear that Congress can constitutionally require the FISC to sit en banc, because
en banc decision-making does not, in and of itself, limit core Article III powers.179 After all, in
Western P.R., the case in which the Supreme Court held that the en banc provisions of Section 46
of the Judicial Code were permissive in nature, the Courts’ interpretation was not compelled by
constitutional reasons.180 Instead, the Court reasoned that practical considerations, such as a
contrary reading imposing “unwarranted extra burdens on the court,” drove the Court’s
interpretation of Congress’s intent in enacting the statute, implicitly conceding that Congress
could impose mandatory en banc proceedings if it had had such an intent.181
Indeed, in a related context, Congress has mandated the use of three-judge panels to adjudicate
various categories of cases in the federal courts. For instance, in 1903, Congress established
three-judge panels of the circuit courts to adjudicate antitrust suits brought by the federal
government.182 That statute provided that when the Attorney General attested that the case
involved questions of “general public importance,” that case “be given precedence over others
and in every way expedited, and be assigned for hearing at the earliest practicable day, before not
less than three of the circuit judges” of that circuit.183 Similarly, in 1910, Congress required that
any suit seeking to enjoin a state officer from enforcing an allegedly unconstitutional law had to
be submitted to a three-judge panel consisting of at least one justice of the Supreme Court or any

(...continued)
1988); United States v. Stokley, Criminal Action No. 2:87-00206 (S.D. W. Va. July 8, 1988); United States v. Swapp,
695 F. Supp. 1140 (D. Utah 1988); United States v. Williams, 691 F. Supp. 36 (M.D. Tenn. 1988).
175 See, e.g., United States v. Anaya, 509 F. Supp. 289 (S.D. Fla. 1980), aff'd, 685 F.2d 1272 (11th Cir. 1982)
(dismissing 84 indictments lodged against 336 Cuban defendants).
176 “Although [the FISC] is not a district court, it possesses similar inherent authority, except to the extent that it is
limited by FISA.” In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible
Things, No. BR 13-158 (FISA Ct. Dec. 18, 2013), available at http://www.uscourts.gov/uscourts/courts/fisc/br13-158-
Memorandum-131218.pdf.
177 Similar to the discussion above on mandating the FISC to hear from an amicus, see supra note 135, a determination
of which applications require a hearing en banc could entail an act of judicial discretion on the part of the FISC.
178 See United States v. Klein, 80 U.S. 128, 146 (1872).
179 See supra “Congress’s Power to Regulate the Practice and Procedures of Federal Courts,” pp. 5-9.
180 345 U.S. at 258-59.
181 Id. at 259; but see Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which merely lurk in the record, neither
brought to the attention of the court nor ruled upon, are not to be considered as having been decided as to constitute
precedents.”).
182 Act of Feb. 11, 1903, ch. 544, 32 Stat. 823.
183 Id.
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circuit judge, and the other two either district court or circuit court judges.184 Although Congress
has since narrowed the use of these panels,185 they are still employed in a limited category of
cases, such as certain claims under the Civil Rights Act of 1964.186 In this sense, requiring the use
of en banc panels in certain FISA cases appears to be a neutral regulation of the courts
“procedures” that aligns with a long historic precedent and does not appear to offend core Article
III norms.
Altering Voting Rules of the FISC and the FISA
Court of Review
Another suggested procedural change to the FISA judicial review process is to alter the voting
rules of the FISC and the FISA Court of Review. A judicial voting rule is simply the number of
votes required for a court to decide and give precedential effect to a case.187 The FISA Court
Accountability Act (H.R. 2586) would require that before an en banc panel of the FISC could act,
it must have the concurrence of 60% of the sitting judges.188 H.R. 2586 would also require that
any decision in favor of the government by the three-judge FISA Court of Review must be made
unanimously.189
This proposal to statutorily regulate the voting rules of federal courts is not unique. While it has
never directly set the voting rules of the federal courts, Congress has established the number of
Justices that sit on the Supreme Court and the number that constitute a quorum.190 Likewise,
Congress has exercised considerable control over the lower federal courts, such as setting the
number of judges that sit on each court of appeals191 and the number of appeals court judges
needed to constitute a quorum.192 While Congress has made efforts to directly alter the voting
rules of the Supreme Court and the courts of appeals, usually during periods of strong
disagreement with the Court’s rulings,193 none have been successful.194 Without congressional
regulation, the federal courts have fallen back on the common law simple majority rule.195 While

184 Act of June 18, 1910, ch. 309, 36 Stat. 539, 557.
185 P.L. 94-381, 90 Stat. 1119 (1976).
186 See 42 U.S.C. § 2000a-5(b); 42 U.S.C. § 2000e-6(b).
187 See Jonathan Remy Nash, The Majority That Wasn’t: Stare Decisis, Majority Rule, and the Mischief of Quorum
Requirements, 58 EMORY L. J. 831, 837 (2009).
188 FISA Court Accountability Act, H.R. 2586, 113th Cong. (1st Sess. 2013).
189 Id.
190 28 U.S.C. § 1; S. CT. RULE 4.2.
191 28 U.S.C. § 44.
192 28 U.S.C. § 46 (“A majority of the number of judges authorized to constitute a court or panel thereof ... shall
constitute a quorum.”).
193 See the appendix in Evan H. Caminker, Thayerian Defense to Congress and the Supreme Court Supermajority Rule:
Lessons from the Past, 78 IND. L. J. 73, 177 (2003), for a list of past congressional supermajority voting proposals.
194 There have also been proposals to alter the voting rules of the inferior federal courts, including the courts of appeals
sitting en banc, see, e.g., Note, The Politics of En Banc Review, 102 HARV. L. REV. 864, 866 (1989); Note, En Banc
Review in Federal Courts: A Reassessment, 72 MICH. L. REV. 1637, 1655 (1974), and courts of appeals sitting in
traditional three-judge panels. Jacob E. Gersen & Adrian Vermeule, Chevron as a Voting Rule, 116 YALE L. J. 676, 709
(2007).
195 See FTC v. Flotill Prods., 389 U.S. 179, 183 (1967) (“The almost universally accepted common-law rule is [that] in
the absence of a contrary statutory provision, a majority of a quorum constituted of a simple majority of a collective
(continued...)
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Congress has significant authority to regulate the practice and procedure of the federal courts,196 it
is unclear whether directly setting the voting rules of a federal court falls within that power.
Because Congress has never enacted a voting rule for federal courts, neither the Supreme Court
nor the lower federal courts have had the opportunity to address the propriety of such a law.
Nonetheless, various arguments have been made that Congress lacks the authority to set the
voting rules of the Supreme Court. For instance, one theory holds that once Congress vests the
courts with the “judicial power,” sets the number of judges on that court, and sets the quorum,
Congress’s authority to regulate the Court’s procedure terminates, and the Court can exercise the
power of all similar deliberative bodies to decide cases by a simple majority.197 A similar
argument has been made that the structure of the Constitution itself mandates the common law
rule of a bare majority. One observer contends that Congress is powerless to alter the default
majority rule that applies in all deliberative bodies in the absence of a specific constitutional
provision providing for an alteration of this rule.198 For instance, the Constitution provides each
House of Congress the authority to “determine the Rules of its proceedings,”199 but does not
expressly provide that Congress may alter the voting rules of the federal courts. However, there
are several current voting practices that deviate from the bare-majority rule that would undercut
this argument. For instance, Congress currently sets the quorum of the Supreme Court at six,200
which is greater than the common law rule of a simple majority. Likewise, the Court’s own
implementation of sub-majority rules including the Rule of Four,201 which requires only four
justices to grant certiorari review, and the “hold rule,” which requires only three justices to hold a
case,202 may weaken the argument that the use of simple majorities is constitutionally compelled.
Instead of an absolute bar on congressional regulation of the courts’ voting rules, a more likely
resolution of their constitutionality will turn on the degree of interference they might have on the
FISA courts’ exercise of the judicial function. As described above, while Congress has
considerable authority to regulate the practice and procedure of the federal courts, it may not use
this power to erode the core functions of the judiciary.203 Of particular concern with respect to
altering the voting rules is the proposition enunciated in United States v. Klein, in which the
Supreme Court refused to give effect to a statute that was said to “prescribe rules of decision to
the Judicial Department of the government in cases pending before it[.]”204 Although the precise

(...continued)
body is empowered to act for the body.”); Saul Levmore, More Than Mere Majorities, 2000 UTAH L. REV. 759, 765
(2009) ([T]here is almost universal convergence on the requirement of an absolute majority coalition for ...
‘disposition,’ or the immediate, enforceable result affecting the litigants.”).
196 Sibbach v. Wilson & Co., 312 U.S. 1, 9 (1941).
197 CHARLES WARREN, CONGRESS, THE CONSTITUTION, AND THE SUPREME COURT 215 (1925).
198 Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe
and Casey?, 109 YALE L. J. 1535, 1591 (2000).
199 U.S. CONST. art. I, § 5, cl. 2.
200 28 U.S.C. § 1 (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and
eight associate justices, any six of whom shall constitute a quorum.”)
201 See Bailey v. Central Vt. Ry., 319 U.S. 350, 358-59 (1943) (Stone, C.J., concurring) (noting that the Court has
adhered to the “long standing practice of granting certiorari upon the affirmative vote of four Justices”); Harris v.
Pennsylvania R.R. Co., 361 U.S. 15, 18 (1959) (Douglas, J., concurring) (“[T]he practice of the Court in allowing four
out of nine votes to control the certiorari docket is well established and of long duration.”).
202 Watson v. Butler, 483 U.S. 1037, 1038 (1987) (“Three votes suffice to hold a case[.]”).
203 See “Congress’s Power to Regulate the Practice and Procedures of Federal Courts,” pp. 5-9.
204 United States v. Klein, 80 U.S. 128, 146 (1872).
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contours of Klein’s holding are subject to debate, one generally accepted interpretation is that
Congress cannot regulate the jurisdiction of the federal courts in an attempt to dictate substantive
outcomes.205
Requiring a 60%, rather than majority, concurrence in the en banc proceeding would not appear
to unduly interfere with the essential functions of these courts. Under this proposed rule, if the
60% threshold is not met, the decision below would be affirmed. With respect to proceedings
under Section 215 and Section 702, which have recently caused the most concern for Congress,206
this proposal would tilt the scales in favor of affirming the one-judge FISC decision, but on its
face would not primarily favor one result over another.207 The judges would still be permitted to
interpret the law and decide the matter before them free from interference. And because this rule
would primarily have a neutral effect on the FISC’s rulings, it may not violate the principles
established in Klein. Some may argue that this proposal interferes with the FISC’s prerogative to
set its own rules and adjudicate cases free from congressional interference, but as discussed,
Congress has wide latitude to set the rules of the federal courts, and this proposed rule appears to
fall within that authority.208
The requirement of a unanimous vote in the FISA Court of Review for any decision in favor of
the government poses a more serious risk of interfering with the independence of these courts.
The proposal would not apply across the board to all decisions of the Court of Review, but instead
singles out decisions in favor of the government.209 As a matter of course, this rule would prevent
the court from entering an order in favor of one side even when two thirds of the court agrees
with that decision. If viewed in that light, it could be interpreted as Congress seeking to dictate a
substantive outcome in violation of Klein.210 Additionally, a broader argument could be made that
by preventing the Court of Review from acting or issuing binding rulings with respect to certain
cases, Congress is preventing it from acting as a duly constituted court. While the creation of the
Court of Review was in Congress’s sole discretion, it could be argued that once it was created,
Congress cannot deprive it of the core functions of a federal court, including the ability to render
final, “dispositive judgments” in cases before it.211 However, one may argue that while this rule

205 ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 3.2 (4th ed. 2003); see also Jed Handelsman Shugerman, A Six-
Three Rule: Reviving Consensus and Deference on the Supreme Court, 37 GA. L. REV. 893, 985 (2003) (“Congress
should not be able to tell the Court exactly how to rule and for whom, because that infringes on the judicial power.”).
206 See CRS Report R43134, NSA Surveillance Leaks: Background and Issues for Congress, by John W. Rollins and
Edward C. Liu.
207 In all other FISA proceedings, this rule may tilt the scales against the government as it is the sole entity with the
authority to request a hearing or rehearing en banc. Although still not dictating a substantive outcome, this scenario
could raise more serious constitutional concerns. See Shugerman, supra note 205, at 985-86 (“If Congress imposed a
supermajority rule only for certain kinds of constitutional challenges, e.g., federalism or substantive due process, such a
substantive direction would create a Klein problem.”).
208 Although Congress has considerable authority to establish procedures in the federal courts, this power is not
limitless. While requiring a 60% concurrence of an en banc FISC panel may fall within that power, mandating a higher
threshold, such as unanimity, may unduly hinder the FISC from acting at all and might constitute an unreasonable
interference into that court’s judicial function. See Shugerman, supra note 205, at 984-85 (“However, what if Congress
required a unanimous vote, or no more than one dissent, for striking down federal laws? In terms of ‘essential
functions,’ this difference in degree becomes a difference in kind with such a burdensome rule. Judicial review would
remain a power only in theory but not in practice, except in only the clearest cases of legislative intrusions. An overly
burdensome degree of consensus effectively would be a checkmate against the essential power.”).
209 FISA Court Accountability Act, H.R. 2586, 113th Cong. (1st Sess. 2013).
210 Cf. United States v. Klein, 80 U.S. 128, 146 (1872).
211 See Plaut v. Spendthrift Farm, 514 U.S. 211, 219 (1995) (quoting Frank Easterbrook, Presidential Review, 40 CASE
W. RES. L. REV. 905, 926 (1990)).
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may make it harder for the government to win on appeal, the proposal does not mandate a
particular result and leaves the ultimate decision-making authority with the judges. Ultimately,
like the other proposals altering the procedures and operations of the FISA courts, there is little
judicial precedent to evaluate measures that would alter the courts’ voting rules.

Author Contact Information

Andrew Nolan
Richard M. Thompson II
Legislative Attorney
Legislative Attorney
anolan@crs.loc.gov, 7-0602
rthompson@crs.loc.gov, 7-8449


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