Glenn Greenwald has authored a post on the ACLU‘s blog, the Blog of Rights. The post, with the straightforward title “Is Retroactive Telecom Immunity Unconstitutional?” raises just that question before delving into the details of the argument that the immunity provisions of the recent FISA legislation was, in fact, unconstitutional.
Greenwald puts forward a number of arguments including an interesting separation of powers claim:
Telecom immunity, “…constitutes a usurpation by the Congress and the President of the “judicial power” which the Constitution assigns to the judicial branch. Article 3, Section I, provides that ‘The judicial Power of the United States,shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,’ while Section 2 specifies that ‘[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.’ ”
There are further questions raised regarding due process and the issue of direct constitutional challenges in the pending lawsuits since “It is axiomatically true that no statute, such as the one Congress just passed, can authorize constitutional violations.”