Following up on yesterday’s headllne-grabbing opinion in Klayman, Orin Kerr writes:
Here’s a thought experiment. Let’s assume that when DOJ appeals Judge Leon’s opinion in Klayman v. Obama, the DC Circuit does not reverse on the procedural issues. Instead, on appeal the DC Circuit takes precedent seriously and tries to square the NSA surveillance program with United States v. Maynard and its mosaic theory on the merits of the Fourth Amendment. If that happens, how should the court rule? That is, how should the NSA program fare under the Maynard mosaic theory?
Read more on The Volokh Conspiracy.