Paul’s best argument would be that the Obama administration stretched the meaning of the 2008 FISA amendments when it sought, and obtained, a FISA court order requiring Verizon to turn over phone records so that the government could use them to create a searchable (with a warrant) database.

As Benjamin Wittes and Robert Chesney argue in the New Republic, this might be more than Congress intended when it authorized the government to seek “tangible things” that are certifiably “relevant” to a national security investigation.

Still, it would be of significance at the Supreme Court that the administration persuaded a federal judge to accept its reading of the statute and that at least some members of Congress acquiesced as well.

In short, Paul would be asking the justices not only to revise decades of constitutional doctrine but also to second-guess FISA court orders and the will of Congress. That would be a tall order since, as Justice Robert H. Jackson wrote in the Steel Seizure Case of 1952, the executive branch’s authority is “at its maximum” when it acts according to duly enacted statute.