In what looks more like a publicity stunt than a serious legal challenge, Senator Rand Paul has filed a class-action lawsuit against President Obama and other top executive-branch officials, claiming that the National Security Agency’s metadata-collection program violates the Fourth Amendment.
The suit is no surprise. I’ve previously noted that, despite his “constitutional conservative” branding, Senator Paul can sound just like a “living Constitution” progressive when it suits him: He finds the data collection offensive, so ipso facto it must be not only unwise policy but a violation of fundamental law. I am surprised, though, to find former Virginia attorney general Ken Cuccinelli lending his name to the effort. Like Senator Paul, Mr. Cuccinelli is very sound on many things and was particularly strong in arguing the unconstitutionality of Obamacare. But he is all wet on this one.
Let’s get something straight from the start: It is true that the NSA’s program may be illegal. But that has nothing to do with the Constitution. It is a question of compliance with Section 215 of the PATRIOT Act, the statute pursuant to which the data collection takes place.