« Thank you! | Main | Case Western Reserve Law Review is still accepting submissions! »

Thursday, October 01, 2015

U.S. v. Klein returns to SCOTUS

I spent the better part of two years a few years ago writing about United States v. Klein, including a number of posts here. The Court this morning granted cert. in Bank Markazi v. Peterson on whether Klein's separation-of-powers principle is violated by a statutory provision blocking certain Iranian-controlled assets for use in satisfying U.S. terrorism-related judgments against Iran.

Section 8772 of Title 22 provides that certain Iranian-controlled assets are subject to execution or attachment to satisfy money judgments against Iran "for personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, or hostage-taking, or the provision of material support or resources." The assets described are specifically identified as the ones targeted in Peterson (which is mentioned by name) and which already had been restrained by the court in that case prior to enactment of the law. The statute requires that the court hold a hearing and determine whether Iran owns the assets, in whole or in part.

Bank Markazi argued below that the law violates the principle of Klein by improperly compelling the court to reach a preordained result--namely that Iran owns these assets. It emphasized that § (b) refers to the Peterson litigation by name and that the result of any judicial hearing is preordained, since Iran's interests in the assets was known and established before § 8772 was enacted. Nevertheless, the Second Circuit rejected the Klein argument, insisting that § 8772 changed applicable law for a pending case, but still required an independent judicial determination and application. Nor was it problematic that the law was drafted for a specific, identified litigation, something the Court had previously found did not equate with compelling an outcome. Section 8772 did not dictate an outcome; it only changed the law in a way likely to produce, through judicial application of the amended law, Congress' preferred outcome. But the likelihood of an outcome does not signal congressional dictation of an outcome; "[i]ndeed, it would be unusual for there to be more than one likely outcome when Congress changes the law for a pending case with a developed factual record."

Interestingly, the Second Circuit opinion contains some language that might have teed the case up for cert. In an act of understatement, the court acknowledged that the line between a valid change in law and an invalid legislative adjudication "is often difficult to draw." In fact, "there may be little functional difference between § 8772 and a hypothetical statute directing the courts to find that the assets at issue in this case are subject to attachment under existing law, which might raise more concerns." The court made clear that § 8772 did not cross the constitutional line because of the Court's guidance in Robertson.

So perhaps the Court is looking for a chance to reconsider Robertson and that line. Indeed, the ease with which courts can characterize just about any enactment as a change of law rather than a congressional compulsion is part of why Klein's "no dictating outcomes" principle carries so little force. This case might give the Court a chance to breathe some life into Klein.

Posted by Howard Wasserman on October 1, 2015 at 01:55 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

perhaps a "congratulations" is deserved

Posted by: Joe | Oct 1, 2015 2:57:47 PM

and your opinion on the outcome would be? Case seems to mired in the Iran Nuclear Deal.

Posted by: Brenda | Oct 2, 2015 3:34:52 PM

Solicitor general also recommended scouts not grant cert. How do you think it will turn out?

Posted by: Chuck | Oct 4, 2015 11:43:16 PM

Post a comment