Moderating the power of the administrative state means giving power back to Congress and eliminating judicial deference.
The Constitution permits Congress to do amazing stuff to the independent judiciary. It can withhold jurisdiction, or yank jurisdiction that’s been given. It can change the law for pending cases. It can legislate for a “legitimate class of one.” But suppose Smith sues Jones in federal court and Congress enacts a law saying, “In Smith v. Jones [docket number], Smith wins.” Constitutional? An ancient, messy case, U.S. v. Klein (1872), seems to say “no.” After Wednesday’s decision in Bank Markazi v. Peterson, the answer may be “yes.” I’ve written about the case before: The outcome is more depressing than I had apprehended.
For many years, victims of Iranian acts of terror have sought to obtain damages for those acts. They obtained numerous favorable verdicts and then, in a consolidated case, sought execution of those judgments against certain assets of the Bank of Iran (Markazi). For various legal reasons (including New York property law) that proved unavailing. Thus, while the case was pending, Congress enacted a so-called law (“Section 8772”), providing that “a financial asset . . . shall be subject to execution . . . in order to satisfy any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death…” The law defines as available for execution “the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG).”
No problem, Justice Ginsburg wrote for a majority of six justices (the Chief and Justice Sotomayor dissenting, about which more anon). Klein just holds that Congress cannot tell the Court to do an unconstitutional thing; its broader pronouncements to the effect that Congress cannot dictate the outcome in pending cases cannot “be taken at face value.” In any event, Section 8772 is different from “Smith wins.” That statute might violate the Equal Protection Clause if it’s irrational. Moreover, “Smith wins” doesn’t create new law but simply dictates a result under the old. Section 8772 creates new law, albeit for one day and train only.
That’s cold comfort. It’s easy to think of “Smith wins” statutes that aren’t irrational (“In the matter of Paula Jones v. William Jefferson Clinton, Clinton wins.”) And as the dissent notes, “Smith wins” does create new law—for that case. There’s no meaningful difference, moreover, between saying “Smith wins” and mowing down all defenses Jones might have—which is the plain intent and effect of Section 8772.
Neither the result, nor the narrow reading of Klein, is entirely indefensible. It’s fiendishly hard to draw a line between legislative and judicial power. (The finality of judgments is one: that’s why Congress cannot re-open final judgments or make them subject to executive revision. But that’s not at issue here.) Congress must be able to change the law for pending cases. Why then does it matter that there’s only one such (known) case out there? To my mind, the difficulty of drawing a clean, principled line accounts for Justice Alito’s and Justice Thomas’s votes with the majority here.
Chief Justice Roberts’ dissent acknowledges the point forthrightly: “I readily concede, without embarrassment, that it can sometimes be difficult to draw the line between legislative and judicial power.” … But however difficult it may be to discern the line between the Legislative and Judicial Branches, the entire constitutional enterprise depends on there being such a line.” And this case, the Chief argues, is where to draw it. Airtight? Of course not. The better part of wisdom? Almost certainly.
The truly dismaying aspect of the majority opinion is its tone. The dissent explains at length that the menace of legislatively directed outcomes was vivid to the Founders; the majority opinion contains nary a word by way of acknowledgment. And instead of waltzing past Klein and the difficult distinction between legislative and judicial powers (the usual practice in such cases, for the excellent reason that you want to leave a line even if you can’t pin it down) the Court here bellies up to it and by-passes any number of ways to decide the case on less problematic grounds.
The final portion of Justice Ginsburg’s opinion is a riff on the mysteries of foreign sovereign immunities law, to the effect that that’s principally the business of the political branches. That’s a special case, one might think. Re-ordering domestic legal relations in this fashion would be a different matter. (The Court has drawn this line in cases like Youngstown and Dames & Moore, with respect to the Executive’s authority.) Amazingly, though, that is not what the opinion says or even intimates. Instead, the foreign sovereign immunities stuff is proffered in a “here’s another reason if you didn’t like the earlier ones” spirit. Worse yet, the discussion is just wrong, in an alarming way.
The Chief nails the point. It’s one thing, he writes, to acknowledge the political branches’ capacious authority in this field, including the disposition of foreign assets. It’s a very different thing when, as here, Congress
seeks to provide relief to respondents not by transferring their claims in a manner only the political branches could do, but by commandeering the courts to make a political judgment look like a judicial one. … [The] political branches have extensive powers of their own in this area and could have chosen to exercise them to give relief to the claimants in this case. … The authority of the political branches is sufficient; they have no need to seize ours.
Jackpot. “Seizing” matters from the judiciary is one side of the threat to judicial independence. The other side is contamination: making courts into the political branches’ “partners,” and “making a political judgment look like a judicial one.”
That recognition is completely missing from the majority opinion. That’s what makes it needlessly troubling.