A supreme court case has benefits that legislation doesn't. If he can get a favorable decision for civil liberties, he could bind future congresses that may not be as friendly to civil liberties as he is. This also could be accomplished through a constitutional amendment, but a court case is far easier.

for starters, Rand is proposing some legislation. A supreme court case is always non-binding to congress. They can just re-propose the law, and wait for someone to sue again (e.g. child labor laws in the 20s). Or the executive can just say, damn you supreme court we're gonna anyways (Jackson, early 19th century). And while a constitutional amendment would be nice, the only part of the constitution that the US follows anymore is 'election protocol' and details that create the pomp and circumstance around inauguration.

A SCOTUS decision IS binding to Congress. They can't pass a law doing something that has been deemed unconstitutional unless they first amend the Constitution to explicitly allow them to do that same thing, which is obviously not going to happen.

Actually, Congress can pass any law they damn well please. It's not until the courts deal with it that an unconstitutional law (in the opinion of a court interpreting law and precedent) can be thrown out.

My original post was operating under the assumption that all branches would abide by the legitimate actions of the other branches. Grandparent is pointing out that sometimes this doesn't happen. Always a possibility, but not something I expect to see very often.

Technically, Congress can pass any bill they damn well please, but it's not a law if it contradicts the Constitution.

Nope, the Founders were ... supremely suspicious of the Federal court system they were creating (e.g. lifetime tenure is double edged blade) and explicitly allowed the Congress to override it. Wikipedia has this under the words of art jurisdiction stripping: http://en.wikipedia.org/wiki/Jurisdiction_stripping

A SCOTUS decision is supposed to be binding to whatever act HAD been passed. Whether that happens in effect is entirely dependent on the (usually) executive branch complying with the SCOTUS ruling. Congress can, if it wanted, re-pass the law. Obviously, it would make a subsequent suit and overturning easier, but in reality, it can, and has happened in the past.

Oh, right. Congress can repass it, but provided the Executive branch respects the function and decision of the judiciary, the Supreme Court does have the final say over congressional acts that have been challenged.

Yeah, I should have been more clear about saying that a SCOTUS decision is non-binding to congress moving forward.

There are two types of decisions made by SCOTUS. In the first type, they rule on Constitutional grounds, in which case it is binding to Congress. In other cases they simply rule on the interperatation of laws themselves; so if Congress changes said laws, the ruling becomes irrelevent. The law in question here is 'interesting' in the sense that it tells the court how to interpret the Constitution. If it ever gets brought up before SCOTUS, my guess would be they would deem the law unconstitutional on the grounds that Congress cannot tell them how to interpret the Constitution. Granted, they would need to find something in the Constitution (or precedent) that says this, but I suspect that would be relativly simple.

That wouldn't be in the spirit of empty grandstanding at all! You, sir, simply don't understand Ron Paul's strategy.

Rand, not Ron.

But, yes, I believe this is probably of a piece with his drone filibuster in terms of being political theatrics.

He knows that a legislative branch approach will fail without making any waves what-so-ever. That's very obvious. Too many members of Congress are openly fascist in their beliefs when it comes to supporting the police state (eg Lindsey Graham and Dianne Feinstein).

The judicial branch approach is meant to spur action and interest on the part of citizens. It's meant to create waves. He's intentionally looking to bypass the legislative branch because the outcome there is already known.

My guess is that if he hadn't filibustered the drone program a few weeks ago, he would of used a filibuster here. Seems like he did the math, and two filibusters this close would make him look like an obstructionist.

Not blaming the man, political capital is not free.

What would he be filibustering? There is no proposed legislation to oppose afaik. What needs to happen is the opposite: someone needs to propose and try to push through new legislation curtailing FISA.

I think he did that, too. But he's tried that route several times before, and the majority of the Senate voted against it. So he's probably not very optimistic about it.

But Congress is filled with Democrats and RINOs, so that's a no-go.

Of course, the Court is filled with know-nothings (as in, they are anti-abstraction, so there is no such thing as a valid governing principle, such as a right), so it's all probably pretty pointless.

How is being pro national security and strong police/intelligence a "RINO" position? That's a very traditional Republican position, dating back at least to the early 1950s and cold-war conservatism, and hardening in the 1960s/70s with conservatives' worries about the Vietnam protests, hippies, Black Panthers, and other groups they felt needed to be suppressed. Most Republican-appointed Supreme Court justices have tended to be pro-military and pro-police-power along those lines— Rehnquist, Burger, and Alito being three of the harder-line examples.

Perhaps you're thinking of an alternate history where the Republicans were a primarily libertarian rather than a primarily conservative party?

The Tea Party faction of the GOP is a pretty vigorous libertarian movement-- Rand Paul is the most libertarian elected official of either party.

You must be thinking of a different "tea party faction" than the one I know. Because the one I know has been doing its damnedest to to elect "social conservatives" who support "traditional family values".

But yeah, they're pretty libertarian with respect to the liberties they like. Everything else can go.

That's my impression of the Tea Party in my area (southeast Texas) as well, although the conservatism goes beyond social issues like abortion or gay marriage, and into things more relevant to this discussion, too. On security issues they actually seem rather pro-police and pro-military rather than the opposite. There's a lot of support among local tea-party activists for ideas like having drones patrol the Texas-Mexico border, or even nutty stuff like having roving police ID checks to catch illegal immigrants (Arizona's Sheriff Joe Arpaio is something of a hero). There are some libertarian views as well, but mostly limited to guns and taxes. On security issues, nativist views seem to override suspicion of government.