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Tuesday, February 27, 2018

The irrrepressible myth of Patchak v. Zinke

The Supreme Court decided Patchak v. Zinke, concluding yet again that Congress' power to "change the law" to push pending litigation to its preferred conclusion is, in practice, unbounded. The purported "no dictating outcomes" principle of United States v. Klein does not impose a meaningful limitation, because nothing that Congress does (or is likely to do) is anything other than a change in the law. The law at issue in Patchak affected one case and no other cases had been brought or could be brought that would relate to that land. This will be as close as Congress will come to "In Smith v. Jones, Smith wins" without touching that third rail.

Justice Thomas wrote for himself (and also assigned the opinion) and Breyer, Alito, and Kagan; Ginsburg and Sotomayor concurred in the judgment (tying the result to sovereign immunity); the Chief dissented (as he had in Bank Markazi) for Kennedy and Gorsuch [Update: I should add that the Chief showed rhetorical restraint in this opinion, something often lacking from opinions in which he feels strongly about an issue].

An additional wrinkle was that the plurality deemed the statute a jurisdiction-stripping provision, which I am not convinced is correct. The statute says a suit relating to the proper "shall not be filed or maintained in a Federal court and shall be promptly dismissed;" that language also could describe a non-jurisdictional procedural rule or an element of the claim ("no action shall be filed or maintained against a company with less than 15 employees"), although the plurality insisted it could not be either.

So the opinion was a two-fer: Klein has no practical force and the Court overused jurisdiction.

Posted by Howard Wasserman on February 27, 2018 at 01:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


"the Chief showed rhetorical restraint in this opinion"

He had his moments.

"Over and over, the plurality intones"

"the principle that the plurality would enshrine is of historic consequence"

[Ginsburg] "strains further" ... "relies on a hunch" ... "Saving the text for last"

[Breyer] "nothing but cavalier euphemisms for exercising the judicial power"

And, then he concludes that "The Framers saw this case coming" and basically accuses the majority of violating their very "responsibility" as justices.

Posted by: Joe | Feb 28, 2018 11:56:35 AM

Thanks for drawing our attention for such important ruling , I would indeed agree with chief justice Roberts ( dissenting ) . When the court states that :

" this court's precedents establish the following rule : Congress violates Article IIK when it compels findings or results under old law …..But Congress does not violate Article III when it " changes the law "

Then It has contradicted itself . This is because , when a petitioner ( Patchak ) has no alternative for pursuing remedy , all by stripping off the federal courts from jurisdiction , and no other pending case ( current and future ) is possible in that particular issue , then , courts are stripped off their inherent duty to judge and decide on merits , and , according to general standards , as stated by chief justice Robert :

" In my view, the concept of " changing the law " must imply some measure of generality or preservation of an adjudicative role for the courts . "

And :

Because Section 2(b) singles out Patchak's suit , specified how it must be resolved , and deprives him of any judicial forum for his claim , the decision to uphold that provision surpasses even McCardle as the highwater mark of legislative encroachment on Article III.


Posted by: El roam | Feb 27, 2018 4:48:06 PM

Even under the plurality’s approach, there’s an asymmetric constraint on legislative power: Congress can bail out defendants/respondents, not plaintiffs/petitioners. So this is not “in Smith v. Jones, Smith wins,” it's “in Smith v. Jones, Jones wins.” However extensive congressional power to push pending litigation to a preferred conclusion may now be, it’s a one-direction power, and in that sense far from “unbounded.”

Posted by: RQA | Feb 27, 2018 4:24:19 PM

I think the plurality would probably agree with the amicus brief you signed that if the section of the Gun Lake Act you objected to was neither a jurisdiction-stripping provision, nor a repeal of a waiver of sovereign immunity, it would be unconstitutional. That is, if it mandated a preclusive merits dismissal without changing the law in any other way, it would violate Klein. Now, you and the dissenters don't think it is a jurisdiction-stripping provision, because after Arbaugh we have a clear-statement rule, more or less, about when statutes are deemed jurisdictional. (And according to the dissent, the same is true of the withdrawal of a waiver of sovereign immunity.) But if the statute would be unconstitutional if read your way, or the dissent's way, and constitutional if read the plurality's way (or the concurring Justices' way), doesn't avoidance mandate reading it their way so long as their way is permissible? Unless Arbaugh is so important that it should trump avoidance, and that I really don't see. I'm not a huge avoidance fan myself, but here it does seem to me that, where Congress was bent on kicking this lawsuit out of court, and wasn't terribly precise about the mechanism by which they were doing it (jurisdictional, procedural, mandate of a merits result, repeal of sovereign-immunity waiver are all possible readings), it behooves courts to preserve their policy and assume that Congress didn't mean to act unconstitutionally, even if it forces them to depart from a clear-statement rule that in the main serves admirable clarifying purposes.

Posted by: Asher Steinberg | Feb 27, 2018 3:00:07 PM

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