Congress’s Power over Court Decisions: Jurisdiction Stripping and the Rule of Klein

Congress’s Power over Court Decisions: Jurisdiction Stripping and the Rule of Klein

Congress’s Power over Court Decisions:
Jurisdiction Stripping and the Rule of Klein
Updated January 19, 2024

Congressional Research Service
https://crsreports.congress.gov
R44967

Congress’s Power over Court Decisions: Jurisdiction Stripping and the Rule of Klein

Summary
Article III of the Constitution establishes the judicial branch of the federal government, creating a
federal judiciary with significant independence, providing federal judges with life tenure, and
prohibiting diminutions of judges’ salaries. However, the Framers also granted Congress the
power to regulate the federal courts in numerous ways.
One key way that Congress can regulate federal courts is by establishing the scope of their
jurisdiction. Article III authorizes Congress to determine what types of cases inferior courts have
jurisdiction to review. Additionally, Article III’s Exceptions Clause grants Congress the power to
make “exceptions” and “regulations” to the Supreme Court’s appellate jurisdiction. Congress
sometimes exercises this power by “stripping” federal courts of jurisdiction to hear certain classes
of cases. On occasion, Congress has eliminated a court’s jurisdiction to review a particular case
during active litigation. More generally, Congress may influence case outcomes by amending the
substantive law underlying particular litigation.
These practices have, at times, raised separation-of-powers questions about whether the
legislative branch is impermissibly interfering with the judicial power to resolve cases and
controversies independently. In Marbury v. Madison, the Supreme Court announced that the
Constitution, by granting the judicial branch the power to decide cases and controversies,
necessarily grants the judiciary the power to “say what the law is.” Sometimes competing with
this principle is the understanding that the Constitution empowers Congress to decide what
classes of cases the federal courts may review and enact substantive law that courts may need to
interpret.
This report examines a series of Supreme Court rulings that have considered separation-of-
powers-based limitations on the Exceptions Clause, congressional jurisdiction stripping, and the
ability of Congress to amend laws with the purpose of directly impacting existing litigation. The
Court’s jurisprudence in this area largely begins with the Reconstruction-era case United States v.
Klein, in which the Supreme Court held that Congress may not, by limiting appellate jurisdiction,
dictate a “rule of decision” that undermines the independence of the judiciary. In a related 1995
case, Plaut v. Spendthrift Farm, Inc., the Court held that Article III prohibits Congress from
enacting legislation requiring courts to reopen final judgments.
Cases since Klein have limited the reach of that decision. However, the case remains good law,
and Klein and its progeny provide some useful guideposts for Congress in fashioning jurisdiction-
stripping legislation and measures that target pending litigation. Cases interpreting Klein have
held that Congress cannot impede the judiciary’s power to decide cases independently, for
example, by telling a court how it should rule in a specific case or how to apply existing law to
the facts in a given case. Within those boundaries, Congress has some ability to influence how the
judiciary resolves lawsuits without violating the separation of powers. Congress can do this by
regulating federal courts’ jurisdiction or by enacting substantive statutes that the judiciary must
apply to resolve a legal dispute. For instance, it does not offend separation-of-powers limitations
for Congress to create or amend a law that retroactively applies to lawsuits that began before the
new law was enacted. Such new law can target a specific case or set of cases. Additionally, it
appears legislation can be designed in a manner that ensures victory for a particular party so long
as the reviewing court may still independently apply the new law to the facts of the case.
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Contents
The Separation of Legislative and Judicial Powers ......................................................................... 2
United States v. Klein ...................................................................................................................... 4
United States v. Sioux Nation of Indians ......................................................................................... 6
Robertson v. Seattle Audubon Society ............................................................................................ 8
Plaut v. Spendthrift Farm, Inc. ......................................................................................................... 9
Miller v. French ............................................................................................................................. 10
Bank Markazi v. Peterson .............................................................................................................. 12
Patchak v. Zinke ............................................................................................................................ 14
Mountain Valley Pipeline, LLC v. Wilderness Society ................................................................. 17
Considerations for Congress.......................................................................................................... 20

Contacts
Author Information ........................................................................................................................ 22

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Congress’s Power over Court Decisions: Jurisdiction Stripping and the Rule of Klein

rticle III of the Constitution establishes the judicial branch of the federal government,
creating a federal judiciary with significant independence, providing federal judges with
A life tenure, and prohibiting diminutions of judges’ salaries.1 In presiding over cases,
federal courts possess significant power over citizens’ life, liberty, and property. Congress, for its
part, provides the substantive law that the courts apply in such cases through legislation. In
addition to enacting substantive legislation, Congress also has other ways to exert control or
influence over the activity of the courts.
One significant way Congress can affect the judiciary is by regulating federal court jurisdiction.
The Exceptions Clause in Article III grants Congress the power to make “exceptions” and
“regulations” to the Supreme Court’s appellate jurisdiction.2 More generally, as part of its power
to create lower federal courts, Congress possesses the power to eliminate the jurisdiction of the
lower courts.3 Congress sometimes exercises this power by “stripping” federal courts of
jurisdiction to hear certain classes of cases. Congress has even eliminated a court’s jurisdiction to
review a particular case while it was pending.4 More generally, Congress may influence judicial
outcomes by amending the substantive law underlying particular litigation.5
These practices have, at times, raised separation-of-powers questions about whether the
legislative branch is impermissibly interfering with the judicial power to resolve cases and
controversies independently.6 Long ago in Marbury v. Madison, the Supreme Court announced
that the Constitution, by granting the judicial branch the power to decide “cases” and
“controversies,” necessarily grants the judiciary the power to “say what the law is.”7 However,
the Constitution does not require complete insulation of the judiciary from the legislature.8 On the
one hand, the Court has held that “Congress has the power (within limits) to tell the courts what
classes of cases they may decide”9 and enact legislation that may affect pending cases being
adjudicated by the federal courts.10 On the other hand, the limits of Congress’s power to legislate

1 U.S. CONST. art. III.
2 See U.S. CONST. art. III, § 2.
3 See Sheldon v. Sill, 49 U.S. (1 How.) 441, 449 (1850) (“Courts created by statute can have no jurisdiction but such as
the statute confers.”).
4 See Tara Leigh Grove, The Structural Safeguards of Federal Jurisdiction, 124 HARV. L. REV. 869, 888–916 (2011)
(describing various congressional jurisdiction-stripping efforts).
5 See, e.g., Robertson v. Seattle Audubon Soc’y, 503 U.S. 429 (1992) (upholding law that replaced legal standards
underlying particular litigation).
6 See, e.g., Bank Markazi v. Peterson, 578 U.S. 212, 246 (2016) (Roberts, C.J., dissenting) (“Applying a retroactive law
that says ‘Smith wins’ to the pending case of Smith v. Jones implicates profound issues of separation of powers.”);
Leonard G. Ratner, Congressional Power over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV.
157, 158–59 (1960) (noting concerns if Congress were to have “plenary control over the appellate jurisdiction of the
Supreme Court”). But see Ralph A. Rossum, Congress, the Constitution, & the Appellate Jurisdiction of the Supreme
Court: The Letter & the Spirit of the Exceptions Clause, 24 WM. & MARY L. REV. 385, 413–19 (1983) (dismissing
arguments that the Exceptions Clause is limited by separation of powers, noting, “In our constitutional system, the
judiciary is not supposed to be entirely independent “and that “[s]eparation of powers does not entail complete
independence.”).
7 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–
19 (1995) (“[T]he Framers crafted this charter of the judicial department with an expressed understanding that it gives
the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior
courts in the Article III hierarchy.”).
8 See generally CRS Report R47382, Congressional Control over the Supreme Court, by Joanna R. Lampe.
9 City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1868 (2013).
10 Plaut, 514 U.S. at 226 (“When a new law makes clear that it is retroactive, an appellate court must apply that law in
reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome
accordingly.”).
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may be tested when Congress enacts laws that interfere with functions of the other branches or
target specific individuals or cases, as opposed to legislating for the country as a whole and the
general welfare.11
This report examines a series of Supreme Court rulings that have considered separation-of-
powers-based limitations on the Exceptions Clause, congressional jurisdiction stripping, and the
ability of Congress to amend laws with the purpose of directly impacting existing litigation.12 The
Court’s jurisprudence in this area largely begins with the Reconstruction-era case United States v.
Klein.13 In Klein, the Supreme Court generally held that Congress may not, by limiting appellate
jurisdiction, dictate a “rule of decision” that undermines the independence of the judiciary.14 In a
related 1995 case, Plaut v. Spendthrift Farm, Inc., the Court held that Article III prohibits
Congress from enacting legislation requiring courts to reopen final judgments.15
These principles are not without limits. Other Supreme Court decisions since Klein have allowed
Congress to enact legislation stripping federal courts of jurisdiction. For example, the Supreme
Court upheld a jurisdiction-stripping provision in 2018 in Patchak v. Zinke.16 Although no opinion
in Patchak gained the support of a majority of the Court, Justice Thomas’s plurality opinion
summarized Klein and its progeny as creating the following rule: “Congress violates Article III
when it compels findings or results under old law. But Congress does not violate Article III when
it changes the law.”17 The most recent Supreme Court decision on this issue, a 2023 non-merits
order in Mountain Valley Pipeline, LLC v. Wilderness Society, provided little additional clarity.18
After surveying the major cases on congressional control over court decisions, this report
concludes by analyzing certain remaining open questions in this area and providing general
guidance for crafting jurisdiction-stripping legislation or other measures designed to impact
pending litigation.
The Separation of Legislative and Judicial Powers
The Constitution does not explicitly mention “separation of powers,” but it is generally
considered inherent in the Constitution’s allocation of federal power to the executive, legislative,
and judicial branches that each branch of government has discrete powers that no other branch

11 See INS v. Chadha, 462 U.S. 919, 966 (1983) (Powell, J., concurring) (“The only effective constraint on Congress’
power is political, but Congress is most accountable politically when it prescribes rules of general applicability. When
it decides rights of specific persons, those rights are subject to ‘the tyranny of a shifting majority.’”); Fletcher v. Peck,
10 U.S. (1 Cranch) 87, 136 (1810) (“It is the peculiar province of the legislature to prescribe general rules for the
government of society; the application of those rules would seem to be the duty of other departments.”).
12 Jurisdiction stripping can raise other constitutional questions that are not relevant to the issues raised by Klein and its
progeny, such as other internal Article III constraints and external constraints imposed by other provisions within the
Constitution. See generally RICHARD H. FALLON, JR., ET AL., HART & WECHSLER’S THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 295–345 (Robert C. Clark, et al. eds., 7th ed. 2015). This report is focused on the Klein-based limits
on jurisdiction stripping. Other limits on the power of Congress concerning the control of federal court jurisdiction are
beyond the scope of this report.
13 United States v. Klein, 80 U.S. 128 (1872).
14 Id.
15 Plaut, 514 U.S. 211.
16 Patchak v. Zinke, 583 U.S. 244 (2018).
17 Id. at 250 (internal citations, quotation marks, and alterations omitted).
18 Mountain Valley Pipeline, LLC v. Wilderness Soc’y, 144 S. Ct. 42 (2023) (Mem).
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can invade.19 The Founders envisioned the separation of the three branches of government as an
“essential precaution in favor of liberty.”20 In particular, the Framers viewed the need to separate
the legislative and judicial powers as a “sharp necessity.”21 This was, in part, a reaction to a
common practice in the colonies, and then the states, of “legislative correction of judgments,” in
which legislative bodies would set aside judgments through legislation.22
Still, the Framers recognized that separation of the three branches of government would not be
perfect or complete.23 This is evinced in the powers granted to Congress in Article III of the
Constitution. For example, Article III’s Exceptions Clause allows Congress to make exceptions to
the Supreme Court’s appellate jurisdiction.24 The clause has traditionally been viewed as
authorizing Congress to remove a class of cases from federal court jurisdiction.25 Moreover,
because Article III grants Congress the power to establish inferior federal courts,26 those lower
courts have only the jurisdiction that Congress affirmatively grants by statute.27
In addition, Congress’s power to regulate federal court jurisdiction and to enact substantive laws
that the judiciary must apply extends to laws that retroactively change legal rights. The Supreme
Court has long recognized that courts must generally apply retroactive laws to pending cases,
even when the law was different when the litigation began.28 Thus, Congress “can always revise
the judgments of Article III courts in one sense: When a new law makes clear that it is retroactive,
an appellate court must apply that law in reviewing judgments still on appeal that were rendered
before the law was enacted, and must alter the outcome accordingly.”29 Similarly, Congress can
lawfully influence litigation by enacting legislation that alters the effect, going forward, of
injunctions issued by a federal court.30

19 See, e.g., Miller v. French, 530 U.S. 327, 341 (2000) (“The Constitution enumerates and separates the powers of the
three branches of Government in Article I, II, and III, and it is this ‘very structure’ of the Constitution that exemplifies
the concept of separation of powers.”); Jonathan Turley, Madisonian Tectonics: How Form Follows Function in
Constitutional & Architectural Interpretation, 83 GEO. WASH. L. REV. 305, 332–33 (2015) (“The separation of powers
frames Madison’s vision of the tripartite system.... [T]he separation of powers was not mentioned in the text of the
Constitution ... [but] the absence of an explicit reference to separation of powers is not surprising when placed in the
context of the contemporary views of the time.”).
20 THE FEDERALIST NO. 47 (James Madison).
21 See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 221 (1995).
22 See id. at 219–20.
23 See THE FEDERALIST NO. 48 (James Madison) (“[T]he degree of separation which the maxim requires, as essential to
a free government, can never in practice be duly maintained.”).
24 U.S. CONST. art. III, § 2; see also Ex parte McCardle, 74 U.S. (1 Wall.) 506, 512–13 (1868) (“It is quite true ... that
the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the
Constitution. But it is conferred ‘with such exception and under such regulations as Congress shall make.’”).
25 See Ex parte McCardle, 74 U.S. (1 Wall.) at 513–14.
26 U.S. CONST. art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish.”).
27 See Sheldon v. Sill, 49 U.S. (1 How.) 441, 449 (1850) (“Courts created by statute can have no jurisdiction but such as
the statute confers.”).
28 See United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 109 (1801) (“[I]f subsequent to the judgment and
before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must
be obeyed.”). The Constitution imposes other limits on retroactive legislation, including the Ex Post Facto Clause, the
Takings Clause, prohibitions on Bills of Attainder, and the Due Process Clause. See Bank Markazi v. Peterson, 578
U.S. 212, 228–29 (2016); Landgraf v. USI Film Prods., 511 U.S. 244, 266–67 (1994); see also CRS In Focus IF11293,
Retroactive Legislation: A Primer for Congress, by Joanna R. Lampe (2019).
29 Plaut, 514 U.S. at 226.
30 See id. at 222; Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1855).
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The tension in Article III, which creates an independent federal judiciary but also subjects the
judicial branch to some degree of legislative control, generates difficult questions related to
separation of powers. The Supreme Court has thus had multiple occasions to consider when
Congress’s actions impermissibly invade the powers of the judiciary.
United States v. Klein
The Supreme Court first recognized the separation-of-powers limitations on jurisdiction-stripping
legislation in the Reconstruction-era case United States v. Klein.31 The plaintiff in Klein was the
estate of a deceased Confederate soldier whose cotton had been confiscated and sold by the
government during the Civil War under the Abandoned and Captured Property Act of 1863.32
Under that statute, individuals who had not “given any aid and comfort” to the rebellion could
obtain the proceeds from any captured property.33 Several presidential proclamations declared
that a person could become eligible to receive the proceeds of his property after receiving a full
presidential pardon and taking an oath of loyalty to the United States.34 Once pardoned, a person
could petition the U.S. Court of Claims for the proceeds.35 The Court of Claims, in a May 1869
ruling, concluded that the soldier’s estate was entitled to receive the cotton’s proceeds.36 The
government appealed to the Supreme Court.37
While Klein’s case was pending, the Supreme Court reviewed a similar case, United States v.
Padelford.38 Like the decedent in Klein, the claimant in Padelford had participated in the
rebellion, been pardoned, taken the loyalty oath, and sought the proceeds of captured property.
The Supreme Court held that taking the oath and receiving the pardon made him “innocent in law
as though he had never participated,” and so the claimant’s “property was purged of whatever
offence he had committed and relieved from any penalty that he might have incurred.”39 As a
result, the Court held that Padelford was entitled to the proceeds from the government’s sale of
his property.40
Shortly after the Padelford ruling, Congress enacted legislation intended to make a presidential
pardon ineffective in establishing a right to the proceeds of seized property. That legislation
provided that the Court of Claims must treat a presidential pardon as “conclusive evidence” that
the pardon recipient aided the rebellion, and, upon such proof, “the jurisdiction of the court in the
case shall cease, and the court shall forthwith dismiss the suit of such claimant.”41 The legislation
further stated that in all cases where the Court of Claims had rendered a favorable judgment for a
claimant based solely on a presidential pardon—without additional proof of loyalty to the United
States—“the Supreme Court shall, on appeal, have no further jurisdiction of the cause, and shall
dismiss the same for want of jurisdiction.”42 Based on those provisions, the government asked the

31 80 U.S. (1 Wall.) 128 (1872).
32 Id.
33 12 Stat. 820, § 3; Klein, 80 U.S. at 131.
34 Klein, 80 U.S. (1 Wall.) at 131–32.
35 Id. at 131.
36 Id.
37 Id.
38 United States v. Padelford, 76 U.S. (1 Wall.) 531 (1869).
39 Id. at 543.
40 Id.
41 Klein, 80 U.S. at 134 (internal quotation marks and citation omitted).
42 Id. (internal quotation marks and citation omitted).
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Supreme Court to remand Klein’s case with instructions for the Court of Claims to dismiss the
suit for lack of jurisdiction.43
The Supreme Court refused to dismiss the suit, holding that the way in which Congress stripped
the courts of jurisdiction in this circumstance was unconstitutional. The Court acknowledged that
“the legislature has complete control over the organization and existence of [the Court of Claims]
and may confer or withhold the right of appeal from its decisions.”44 Had Congress “simply
denied the right of appeal in a particular class of cases,” the Court continued, “there could be no
doubt that it must be regarded as an exercise of the power of Congress to make ‘such exceptions
from the appellate jurisdiction’ as should seem to it expedient.”45 But, in the Court’s view,
Congress had gone further by purporting to remove jurisdiction only when certain evidence was
furnished—evidence that a pardon was granted—and by requiring the suit’s dismissal without
allowing the court to rule on the meaning of the pardon.46 The Klein Court held that, in so doing,
Congress had “prescribe[d] a rule for the decision of a cause in a particular way”47 and thus
“passed the limit which separates the legislative from the judicial power.”48
The Court expressed concerns about the fact that the jurisdiction-stripping provision required a
favorable disposition for the government:
Congress has already provided that the Supreme Court shall have jurisdiction of the
judgments of the Court of Claims on appeal. Can it prescribe a rule in conformity with
which the court must deny to itself the jurisdiction thus conferred, because and only
because its decision, in accordance with settled law, must be adverse to the government
and favorable to the suitor? This question seems to us to answer itself.49
The Court raised an additional separation-of-powers objection to the legislation at issue in Klein,
noting that “the legislature cannot change the effect of [a presidential] pardon any more than the
executive can change a law,” but Congress had attempted to do so through the provision.50 The
Court thus stated that the provision “certainly impairs the executive authority and directs the court
to be instrumental to that end.”51
Since Klein, no congressional enactment related to federal court jurisdiction appears to have been
struck down under the precise separation-of-powers rule announced in Klein.52 Meanwhile, legal
scholars have wrestled with Klein’s language, trying to decipher what, precisely, the 19th-century
Court meant.53 The general consensus is that Klein holds that Congress’s authority to regulate

43 Id. at 133–34.
44 Id. at 145.
45 Id.
46 Id. at 145–46.
47 Id. at 146. The Supreme Court also opined that Congress had infringed on the Executive’s pardon power by
nullifying the full effect of certain presidential pardons. Id. at 147–48.
48 Id. at 147.
49 Id.
50 Id. at 148.
51 Id.
52 See Howard M. Wasserman, The Irrepressible Myth of Klein, 79 U. CIN. L. REV. 53, 70 (2010) (“But such blatantly
violative enactments seem unlikely, which perhaps explains why no actual laws have been invalidated under this
principle.”). In Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), discussed later in this report, the Supreme Court
invalidated a law based on separation-of-powers concerns that were related to, but distinct from, those at the heart of
Klein. Id. at 265–66 (concluding that the statute at issue does not violate the constitutional restrictions Klein imposed
but, nevertheless, “offends a postulate of Article III just as deeply rooted in our law as those we have mentioned”).
53 See, e.g., FALLON, supra note 12, at 323 (“[T]he Court’s [Klein] opinion raises more questions than it answers, and it
(continued...)
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federal court jurisdiction is limited by principles of separation of powers in that it may not direct
a court how to rule in a particular case or how to apply the law to the facts in the case at hand.54
Some commentators interpret Klein’s holding more narrowly. For instance, one view is that Klein
forbids Congress only from “dictat[ing] substantively unconstitutional results in a category of
cases over which the courts have been given jurisdiction.”55 Another view is that Klein prohibits
Congress from conditioning the Supreme Court’s jurisdiction to hear certain matters on the Court
eschewing the application of certain constitutional provisions.56 Still another view is that Klein’s
holding spoke to congressional attempts to “use its jurisdictional powers to compel a court to take
jurisdiction of a case and to decide it in a way which was at odds with the pardon provisions of
the Constitution.”57 Relatedly, another view is that Klein forbids Congress from telling the courts
how the Constitution must be interpreted.58
United States v. Sioux Nation of Indians
More than a century after its decision in Klein, the Supreme Court again considered separation-
of-powers principles related to congressional control over federal court jurisdiction in a 1980
ruling, United States v. Sioux Nation of Indians.59 In that case, the Court addressed Klein’s
implications for legislation that directly affected a lawsuit related to long-standing treaty and
property disputes between the Sioux Nation of Indians and the United States.60
The Fort Laramie Treaty of 1868 between the Sioux Nation and the United States established the
Great Sioux Reservation for the “absolute and undisturbed use and occupation” of the tribe.61
After the discovery of gold in the Black Hills region of the reservation, however, the United
States sought to renegotiate the treaty.62 Sioux leaders agreed in 1876 to cede the Black Hills
region to the United States, and Congress subsequently abrogated the original treaty with the

can be read to support a wide range of holdings.”); Martin H. Redish & Christopher R. Pudelski, Legislative Deception,
Separation of Powers, & the Democratic Process: Harnessing the Political Theory of United States v. Klein, 100 Nw.
U. L. Rev. 437, 437–48 (2006) (“United States v. Klein ... is a case whose importance to the shaping of American
political theory has never been fully grasped or articulated by scholars, and whose meaning has been comprehended by
the federal judiciary—including the Supreme Court itself—virtually not at all.”); Gordon G. Young, Congressional
Regulation of Federal Courts’ Jurisdiction & Processes: United States v. Klein Revisited, 1981 WIS. L. REV. 1189,
1195 (1981) (“[T]he Klein opinion combines the clear with the delphic.”).
54 See, e.g., Stephen I. Vladeck, Why Klein (Still) Matters: Congressional Deception & the War on Terrorism, 5 J.
NAT’L SECURITY L. & POL’Y 251, 252 (2011) (“[V]irtually all observers agree that Klein bars Congress from
commanding the court to rule for a particular party in a pending case.”); Wasserman, supra note 52, at 69–70 (“What
really is going on under Klein is a prohibition on Congress using its legislative power to predetermine litigation
outcomes through explicit commands to courts as to how to resolve particular factual and legal issues or telling courts
who should prevail on given facts under existing law.”).
55 See, e.g., Gordon G. Young, A Critical Reassessment of the Case Law Bearing on Congress’s Power to Restrict the
Jurisdiction of the Lower Federal Courts, 54 MD. L. REV. 132, 157 (1995).
56 See J. Richard Doidge, Note, Is Purely Retroactive Legislation Limited by the Separation of Powers?: Rethinking
United States v. Klein, 79 CORNELL L. REV. 910, 923 (1994).
57 See Young, supra note 53, at 1223 n.179.
58 See Redish & Pudelski, supra note 53, at 443.
59 448 U.S. 371 (1980).
60 Id. at 374.
61 Treaty of Fort Laramie, art. II, U.S.-Sioux Nation of Indians, May 25, 1868. To view the full text of the treaty, see
Transcript of Treaty of Fort Laramie (1968), MILESTONE DOCUMENTS, https://www.archives.gov/milestone-
documents/fort-laramie-treaty (last visited Dec. 21, 2023).
62 See Sioux Nation of Indians, 448 U.S. at 376–83.
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Sioux.63 However, many members of the Sioux Nation considered the renegotiation to be invalid
and sought to pursue the tribe’s rights under the original treaty.64
The Sioux Nation had no legal means to redress its grievances about the Black Hills cession until
1920, when Congress provided jurisdiction in the U.S. Court of Claims for the tribe to bring
claims against the United States “under any treaties, agreements, or laws of Congress, or for the
misappropriation of any funds or lands of” the Sioux Nation.65 The Sioux Nation then brought a
lawsuit alleging that the United States had committed a “taking” of the Black Hills without just
compensation in violation of the Fifth Amendment.66 The Court of Claims ultimately dismissed
the lawsuit after concluding that the claim fell outside the grant of jurisdiction.67
Congress later created the Indian Claims Commission in 1946 to provide a forum for all past
tribal grievances.68 The Sioux Nation renewed its claims before the commission, which ultimately
found in its favor.69 On appeal, the Court of Claims partially reversed on the ground that res
judicata—the legal doctrine that bars relitigating certain matters70—precluded the Sioux Nation
from relitigating its takings claims about the Black Hills.71
In 1978, while the case was pending before the Indian Claims Commission to resolve other
related disputes, Congress amended the Indian Claims Commission Act of 1946 to grant the
Court of Claims jurisdiction to review the merits of the commission’s ruling on the takings claim
despite the res judicata bar.72 Acting under that statute’s authority, the Court of Claims (sitting en
banc) affirmed the commission’s merits ruling.73 Before the Supreme Court, the government
claimed that Congress, in amending the Indian Claims Commission Act, had “inadvertently
passed the limit which separates the legislative from the judicial power” by “prescribing a rule for
decision that left the court no adjudicatory function to perform,” as Klein had prohibited.74
The Supreme Court ultimately distinguished Klein and held that Congress had acted within its
power.75 The Court reasoned that the amendment removed only a single issue from the court’s
review—the res judicata bar—and otherwise “left no doubt that the Court of Claims was free to
decide the merits of the takings claim in accordance with the evidence it found and applicable

63 Id. at 381–83.
64 Id. at 383–84.
65 Act of June 3, 1920, ch. 222, 41 Stat. 738.
66 Sioux Nation of Indians, 448 U.S. at 384. The Takings Clause of the Constitution states that private property shall not
“be taken for public use, without just compensation.” U.S. CONST. amend. V.
67 Sioux Tribe of Indians v. United States, 97 Ct. Cl. 613, 666 (Ct. Cl. 1942).
68 Indian Claims Commission Act, ch. 959, 60 Stat. 1049 (codified as amended 25 U.S.C. § 70).
69 Sioux Nation v. United States, 33 Ind. Cl. Comm’n 151 (1974).
70 Res judicata (sometimes called claim preclusion) promotes the finality of judgments by barring a party from
relitigating any claims that were raised, or could have been raised, in an earlier action between the same parties.
See RESTATEMENT (SECOND) OF JUDGMENTS § 13(1982); see also ASARCO, L.L.C. v. Mont. Res., Inc., 858 F.3d 949,
955 (5th Cir. 2017); United States v. Beane, 841 F.3d 1273, 1282–83 (11th Cir. 2016); Alexandra Bursak, Note,
Preclusions, 91 N.Y.U. L. REV. 1651, 1653 (2016).
71 United States v. Sioux Nation, 518 F.2d 1298, 1305–06 (Ct. Cl. 1975) (“It is elementary that in Indian Claims
Commission Act proceedings a former decision on the merits by a court having jurisdiction is a res judicata bar to
further litigation of the same claim.”).
72 Id. at 389 (citing Pub. L. No. 95-243, 92 Stat. 153 (1978), amending § 20(b) of the Indian Claims Commission Act).
See also, 25 U.S.C. § 70s(b) (1976 ed., Supp. II).
73 Id. at 389–90.
74 United States v. Sioux Nation of Indians, 448 U.S. 371, 391–92 (1980) (quoting United States v. Klein, 80 U.S. (1
Wall.) 128, 147 (1872)).
75 Id. at 391–407.
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rules of law.”76 The Court also relied on other precedents holding that Congress may “waive the
res judicata effect of a prior judgment entered in the Government’s favor on a claim against the
United States” without violating the separation of powers by intruding into the judiciary’s
sphere.77 Further, the Court distinguished Klein on its facts, finding that in Klein, “Congress was
attempting to decide the controversy in the Government’s own favor,” whereas in this case,
Congress had only waived a defense so that the legal claim could be resolved on the merits in the
first instance.78
Robertson v. Seattle Audubon Society
Robertson v. Seattle Audubon Society, decided 12 years later, also raised questions of separation
of powers between the legislative and judicial branches related to a law designed to affect
pending litigation.79 In Robertson, environmental and timber-harvesting industry groups contested
the Bureau of Land Management’s and Forest Service’s management of certain federal lands in
Oregon and Washington that were home to the endangered northern spotted owl.80 In general, the
environmental groups asserted that the owl was not being adequately protected, whereas the
industry groups maintained that the agencies’ decisions overly restricted timber harvesting.81
While the lawsuits were pending, Congress enacted the “Northwest Timber Compromise,” which
established harvesting rules for timber in the contested lands inhabited by the northern spotted
owl.82 Section 318(b)(6)(A) of the legislation directly mentioned the pending cases:
[T]he Congress hereby determines and directs that management of areas according to
subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and
Washington and Bureau of Land Management lands in western Oregon known to contain
northern spotted owls is adequate consideration for the purpose of meeting the statutory
requirements that are the basis for the consolidated cases captioned Seattle Audubon
Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers
Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction)
and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160—
FR.83
The environmental and industry plaintiffs interpreted this language as instructing courts to
conclude that, if the federal parties complied with the newly enacted Northwest Timber
Compromise, then they would have satisfied the statutory requirements central to the lawsuits.84
Consequently, the plaintiffs challenged the provision, contending that Section 318(b)(6)(A)
violated Article III of the Constitution “because it purported to direct the results in two pending
cases.”85 The district courts disagreed, principally concluding that Section 318(b)(6)(A) modified

76 Id. at 392.
77 Id. at 396–402 (citing Cherokee Nation v. United States, 270 U.S. 476 (1926), Nock v. United States, 2 Ct. Cl. 451
(Ct. Cl. 1867), and Pope v. United States, 323 U.S. 1 (1944)).
78 Id. at 405.
79 Robertson v. Seattle Audubon Soc’y, 503 U.S. 429 (1992).
80 Id. at 431–33.
81 Id. at 431–32.
82 Department of the Interior and Related Agencies Appropriations Act, 1990 § 318, Pub. L. No. 101-121, 103 Stat. 745
(1989); see Robertson, 503 U.S. at 433.
83 Department of the Interior and Related Agencies Appropriations Act, 1990 § 318(b)(6)(A); see Robertson, 503 U.S.
at 434–35.
84 See Department of the Interior and Related Agencies Appropriations Act, 1990 § 318(b)(6)(A).
85 Robertson, 503 U.S. at 436.
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the relevant environmental laws, and, under that statutory interpretation, the provision was
constitutional.86
The U.S. Court of Appeals for the Ninth Circuit reversed, holding that Section 318(b)(6)(A) was
unconstitutional under Klein. The appellate court held that “[t]he clear effect of subsection
(b)(6)(A) is to direct that, if the government follows the plan incorporated in subsections (b)(3)
and (b)(5), then the government will have done what is required under the environmental statutes
involved in these cases.”87 The Ninth Circuit concluded that “Section 318 does not, by its plain
language, repeal or amend the environmental laws underlying th[e] litigation” but rather “seeks to
perform functions reserved to the Courts by Article III of the Constitution” by “direct[ing] the
court to reach a specific result and make certain factual findings under existing law in connection
with two cases pending in federal court.”88
The Supreme Court unanimously disagreed with the district and appellate courts’ interpretations
of Section 318(b)(6)(A). Without opining on the Ninth Circuit’s application of Klein, the Court
held that Section 318(b)(6)(A) created new standards for complying with the five statutes
underlying the lawsuits. Rather than having to comply with those statutes, the contested land
could, instead, be managed according to the new law.89 As a result, the Court in Robertson
concluded that the provision did not present a Klein-like separation-of-powers problem,
suggesting that Congress has the power to target particular cases so long as the new legislation
allows the courts to independently apply any changes to the law.90
Plaut v. Spendthrift Farm, Inc.
A few years later, in Plaut v. Spendthrift Farm, Inc., the Supreme Court considered a question
related to the rule of Klein: whether legislation that directs courts to reopen final judgments
unconstitutionally intrudes on the judiciary.91 Plaut involved an amendment to the Securities
Exchange Act of 1934 that Congress enacted after two Supreme Court opinions announced a time
limit for bringing civil actions seeking damages under Section 10(b) of the act.92 In Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, the Court had established a statute of limitations for
bringing Section 10(b) claims.93 The same day, in James B. Beam Distilling Company v. Georgia,
the Court had held that when a case announces a new rule and applies that rule to the parties in
that case—which happened in Lampf—the new rule must also be applied to all pending cases.94
As a result, lower courts considering other pending Section 10(b) claims similar to those in Lampf
dismissed those claims.
Six months after the Supreme Court issued the Lampf and Beam Distilling opinions, Congress
added Section 27A to the Securities Exchange Act.95 Section 27A functionally nullified the

86 Id.
87 Seattle Audubon Soc’y v. Robertson, 914 F.2d 1311, 1316 (9th Cir. 1990).
88 Id.
89 Robertson, 503 U.S. at 437–38 (“We conclude that subsection (b)(6)(A) compelled changes in law, not findings or
results under old law.”).
90 Id.
91 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).
92 Id. at 213–14.
93 Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364 (1991).
94 James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991); see Plaut, 514 U.S. at 214.
95 Congress did so through Section 476 of the Federal Deposit Insurance Corporation Improvement Act of 1991, Pub.
L. No. 102-242, 105. Stat. 2236.
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Court’s ruling that the statute of limitations announced in Lampf must be applied to pending
Section 10(b) civil claims. In particular, Section 27A directed courts to reinstate (upon a timely
filed petition) cases that had been dismissed because of Lampf and Beam Distilling but would
have been timely under the governing statute of limitations when initially filed.96
The plaintiffs in Plaut sought to reopen their Section 10(b) suit for securities fraud in light of
Section 27A.97 The district court nevertheless dismissed their suit on the ground that Section
27A’s reopening provision violates the doctrine of separation of powers.98 The Sixth Circuit,99 and
ultimately the Supreme Court, affirmed the judgment of the district court.100
The Supreme Court held that Section 27A, by applying retroactively to final decisions, “reverses
a determination once made, in a particular case” and thus violates the separation of powers.101
The Court distinguished the command in Section 27A from other retroactive laws that mandate
“an appellate court [to] apply [the new] law in reviewing judgments still on appeal that were
rendered before the law was enacted.”102 By directing courts to reopen non-pending, previously
decided cases, the Court continued, Congress violates the separation of powers by “depriving
judicial judgments of the conclusive effect that they had when they were announced.”103
The Court noted that the separation-of-powers concerns in Plaut were related to, but distinct
from, those at the heart of Klein.104 Like the Court in Klein, the Court in Plaut appeared wary of
Congress legislating to curb the judiciary’s reserved Article III powers, particularly those related
to rendering final, dispositive judgments.105 Also like the Supreme Court in Klein, the Court in
Plaut expressed the need for an independent judiciary. It noted that the Framers “lived among the
ruins of intermingled legislative and judicial powers, which had been prevalent in the colonies
long before the Revolution, and which after the Revolution had produced factional strife and
partisan oppression” and that they were thus keenly aware of the need for a judicial branch
independent from the legislature.106 However, the Supreme Court emphasized that its ruling did
not disturb its long-held view that Congress, by enacting new legislation, may “alter[] the
prospective effect of injunctions entered by Article III courts.”107
Miller v. French
Miller v. French began where Plaut left off by examining Congress’s ability “to alter the
prospective effect of previously entered injunctions.”108 The case involved a challenge to a

96 See id. § 476.
97 Plaut, 514 U.S. at 215.
98 Plaut v. Spendthrift Farm, Inc., 1 F.3d 1487, 1490 (6th Cir. 1993).
99 Id.
100 Plaut, 514 U.S. at 240.
101 Id. at 225 (quoting THE FEDERALIST No. 81, at 545).
102 Id. at 226 (emphasis added).
103 Id. at 227–28.
104 Id. at 265–66 (concluding that the statute at issue does not violate the constitutional restrictions Klein imposed but,
nevertheless, “offends a postulate of Article III just as deeply rooted in our law as those we have mentioned”).
105 Id. at 218.
106 Id. at 219–24.
107 Id. at 222 (citing State of Pennsylvania v. The Wheeling & Belmont Bridge Co., 59 U.S. (1 How.) 421 (1855)).
108 Miller v. French, 530 U.S. 327, 344 (2000).
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provision of the Prison Litigation Reform Act of 1995 (PLRA),109 which governs lawsuits
brought by prisoners challenging conditions of confinement.110 The statute spells out the
requirements for obtaining111 and terminating112 prospective relief—that is, relief such as an
injunction that is designed to prevent ongoing or future injuries.113 At issue in Miller was 18
U.S.C. § 3626(e)(2), which, as relevant here, mandates that any motion to terminate an injunction
“shall operate as a stay” of that injunction beginning 30 days after the motion is filed and lasting
until the court rules on it.114
In the Miller lawsuit, inmates at an Indiana prison had obtained an injunction in the mid-1980s
requiring the prison to rectify prison conditions that violated the Eighth Amendment.115 In 1997,
the state moved to terminate the injunction under the PLRA.116 The inmates objected and asked
the district court to enjoin application of the PLRA’s automatic stay provision
(Section 3626(e)(2)) on the theory that it violated separation-of-powers principles.117 The district
court agreed and enjoined the stay.118
The Seventh Circuit affirmed. It first construed the language in Section 3626(e)(2), which
instructed that motions to terminate prospective relief “shall operate as a stay”119 as
unequivocally “restrict[ing] the equitable powers of the federal courts.”120 So construed, the
Seventh Circuit concluded that the provision violated the separation-of-powers principle
announced in Plaut that Article III “gives the Federal Judiciary the power, not merely to rule on
cases, but to decide them, subject to review only by superior courts in the Article III hierarchy.”121
The Seventh Circuit further concluded that Section 3626(e)(2) violated the principles of Klein
because, according to the court, it mandated a rule of decision by requiring the previously ordered
prospective relief to be terminated.122

109 Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, Title VIII
(1995).
110 42 U.S.C. § 1997e.
111 18 U.S.C. § 3626(a).
112 Id. § 3626(b).
113 See, e.g., Colo. Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th Cir. 2014) (“When
prospective relief—such as an injunction—is sought, ‘the plaintiff must be suffering a continuing injury or be under a
real and immediate threat of being injured in the future’” (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-02
(1983))).
114 18 U.S.C. § 3626(e)(2). There is an exception allowing the court to postpone the effective date of the automatic stay
for no more than 60 days “for good cause.” Id. § 3626(e)(4).
115 Miller v. French, 530 U.S. 327, 332 (2000); French v. Owens, 777 F.2d 1250 (7th Cir. 1985).
116 French v. Duckworth, 178 F.3d 437, 438 (7th Cir. 1999).
117 Miller v. French, 530 U.S. 327, 334 (2000).
118 Id. at 334–35.
119 18 U.S.C. 3626(e)(2) (emphasis added).
120 Duckworth, 178 F.3d at 443.
121 Id. at 446 (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–19 (1995)). According to the Seventh Circuit,
“[Section 3626](e)(2) places the power to review judicial decisions outside of the judiciary” because “it is a self-
executing legislative determination that a specific decree of a federal court—here the decree addressing conditions at
[the Indiana prison]—must be set aside at least for a period of time, no matter what the equities, no matter what the
urgency of keeping it in place,” thus “amount[ing] to an unconstitutional intrusion on the power of the courts to
adjudicate cases.” Id.
122 Id.
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The Supreme Court rejected the Seventh Circuit’s constitutional holding.123 Contrary to the
Seventh Circuit’s opinion, the Supreme Court concluded that Section 3626(e)(2) comports with
Plaut because, in that case, the Supreme Court had been “careful to distinguish the situation
before the Court in [Plaut]—legislation that attempted to reopen the dismissal of a suit seeking
money damages—from legislation that ‘altered the prospective effect of injunctions entered by
Article III courts.’”124 The Supreme Court in Miller further explained that “[p]rospective relief
under a continuing executory decree,” like the district court’s injunction against the prison,
“remains subject to alteration due to changes in the underlying law.”125 The Court concluded that
the automatic stay provision in Section 3626(e)(2) “helps implement the change” in the
underlying law for prisoner litigation, which “restricted courts’ authority to issue and enforce
prospective relief concerning prison conditions, requiring that such relief be supported by
findings and precisely tailored to what is needed to remedy the violation of a federal right.”126
Thus, Section 3626(e)(2), “[b]y establishing new standards for the enforcement of prospective
relief” in PLRA lawsuits, “altered the relevant underlying law.”127
Bank Markazi v. Peterson
The Supreme Court’s next examination of separation-of-powers limitations on Congress’s
authority to regulate federal court jurisdiction came in a 2016 opinion, Bank Markazi v.
Peterson.128 The lawsuit involved an amendment to the “terrorism exception” to the Foreign
Sovereign Immunities Act of 1976 (FSIA).129 Under the FSIA, foreign governments are generally
immune from suit in U.S. courts.130 The terrorism exception lifts that immunity for suits seeking
monetary damages for personal injury or death caused by state-sponsored terrorism.131 The
claimants in Bank Markazi, a group of more than 1,000 victims of Iran-sponsored acts of
terrorism, sought to use this exception to pursue claims under the FSIA.132
Claimants filing suit under the FSIA’s terrorism exception often faced difficulties enforcing
favorable judgments because (1) initially, only foreign-state property located in the United States
that was used for commercial activity could be used to satisfy judgments;133 and (2) the FSIA
exempts property of a “foreign central bank or monetary authority held for its own account.”134
Congress enacted several measures over time to ease difficulties in enforcing judgments. The
specific legislation at issue in Bank Markazi was Section 502 of the Iran Threat Reduction and
Syria Human Rights Act of 2012, codified at 22 U.S.C. § 8772.135 Section 8772 mandates that,
upon specified court findings related to the ownership of certain contested assets, particular
Iranian financial assets “shall be subject to execution ... in order to satisfy any judgment ...

123 Miller v. French, 530 U.S. 327, 350 (2000).
124 Id. at 344 (quoting Plaut, 514 U.S. at 232) (emphasis added).
125 Id.
126 Id. at 347–48.
127 Id. at 347.
128 136 S. Ct. 1310 (2016).
129 See id. at 1317 (citing 28 U.S.C. § 1605A).
130 28 U.S.C. § 1604.
131 Id. § 1605A.
132 Bank Markazi, 136 S. Ct. at 1319–20.
133 28 U.S.C. § 1610(a); see Bank Markazi, 136 S. Ct. at 1318.
134 28 U.S.C. § 1611(b)(1); see Bank Markazi, 136 S. Ct. at 1318.
135 Iran Threat Reduction and Syria Human Rights Act of 2012, Pub. L. No. 112-158, 126 Stat. 1214 (codified at 22
U.S.C. § 8772).
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awarded against Iran for damages for personal injury or death caused by” acts of terrorism
covered by the FSIA terrorism exception.136 Section 8772 explicitly defines the financial assets to
be made available as those that had been identified in the Bank Markazi litigation.137 The law also
clarifies that it does not apply to any other assets or other lawsuits outside of the Bank Markazi
litigation.138
The Bank Markazi plaintiffs invoked Section 8772 to seek satisfaction of unpaid judgments
totaling $1.75 billion from assets held in a New York bank for the Central Bank of Iran, also
known as Bank Markazi.139 The district court made the applicable statutory findings and ordered
Bank Markazi to turn over the requested bond assets.140
Relying on Klein, Bank Markazi contested this ruling on the ground that Section 8772 violated
the separation of powers by “effectively dictat[ing] specific factual findings in connection with a
specific litigation—invading the province of the courts.”141 The district court disagreed, reasoning
that under Section 8772, courts may still independently make the ownership findings that the
statute requires, free of congressional interference.142 The Second Circuit affirmed, concluding
that Section 8772 “does not usurp the judicial function,” but “rather, it retroactively changes the
law applicable in this case.”143 Doing so, the Second Circuit added, is “a permissible exercise of
legislative authority.”144
The Supreme Court agreed, rejecting Bank Markazi’s argument that Section 8772 violated the
rule of Klein. Bank Markazi had principally argued that Section 8772, by “purport[ing] to alter
the law for a single pending case concerning the payment of money from one party to another,”
allows Congress to “commandeer the judiciary and dictate how courts must decide individual
cases before them.”145 This, Bank Markazi said, was prohibited by Klein, which said that
Congress cannot “prescribe rules of decision to the Judicial Department of the government in
cases pending before it.”146 Nor did the required statutory factfinding cure this deficiency
because, Bank Markazi asserted, the underlying facts were undisputed and thus left nothing for
the court do to other than compel Bank Markazi to pay the judgment award.147
The Supreme Court did not similarly interpret Klein. Rather, the Court reaffirmed the legitimate
“congressional power to make valid statutes retroactively applicable to pending cases.”148 Thus,
the Court appeared to minimize the import of Klein while confirming Congress’s power to “direct
courts to apply newly enacted, outcome-altering legislation in pending civil cases.”149 Further, the
Court added that Congress “does not impinge on judicial power when it directs courts to apply a

136 22 U.S.C. § 8772(a); see Bank Markazi, 136 S. Ct. at 1318–19.
137 22 U.S.C. § 8772(b); see Bank Markazi, 136 S. Ct. at 1319.
138 22 U.S.C. § 8772(c).
139 Bank Markazi, 136 S. Ct. 1316, 1320–21.
140 Id. at 1321.
141 Id. at 1322 (internal quotation marks and citation omitted).
142 Id.
143 Peterson v. Islamic Republic of Iran, 758 F.3d 185, 191 (2d Cir. 2014).
144 Id.
145 Brief for Petitioner at 11, Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016) (No. 13-770).
146 Id. at 43 (quoting United States v. Klein, 80 U.S. 128, 146 (1872)).
147 Id. at 47–48.
148 Bank Markazi v. Peterson, 136 S. Ct. 1310, 1324 (2016).
149 Id. at 1325.
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new legal standard to undisputed facts,” as Congress did when enacting Section 8772.150 In other
words, the Court is unlikely to find a Klein violation when Congress creates a new substantive
law for courts to apply, even when, functionally, that new law may apply to only one specific set
of cases and may result in only one outcome given the undisputed facts. With these principles in
mind, the Court concluded that Section 8772 lawfully “provides a new standard clarifying that, if
Iran owns certain assets, the victims of Iran-sponsored terrorist attacks will be permitted to
execute against those assets.”151 However, in doing so, the Court also stressed that Section 8772 is
“an exercise of congressional authority regarding foreign affairs, a domain in which the
controlling role of the political branches is both necessary and proper.”152
The Bank Markazi majority took a formalistic approach in its analysis. By contrast, Chief Justice
Roberts, joined by Justice Sotomayor, filed a dissent that took a functional approach, analyzing
the challenged statute based on its dispositive effect on certain litigation.153 In the dissent’s view,
Section 8772 was akin to Congress enacting a law that said “respondents win” and thus
unconstitutionally invaded the judiciary by “enacting a bespoke statute tailored to this case that
resolves the parties’ specific legal disputes to guarantee respondents victory.”154 The dissent
acknowledged that courts “generally must apply a retroactively applicable statute to pending
cases,” but if that retroactive law reads as “respondents win” in a pending lawsuit, that
hypothetical law—like Section 8772—would “implicat[e] profound issues of separation of
powers.”155 Further, the dissent warned, “Hereafter, with this Court’s seal of approval, Congress
can unabashedly pick the winners and losers in particular pending cases.”156
Patchak v. Zinke
The Supreme Court revisited separation-of-powers-based limitations on jurisdiction-stripping
legislation when it decided Patchak v. Zinke in 2017.157 Patchak involved a challenge to the
Department of the Interior’s (DOI’s) decision to place a tract of land in Wayland Township, MI—
known as the “Bradley Property”—in trust under the Indian Reorganization Act for the Match-E-
Be-Nash-She-Wish Band of Pottawatomi Indians.158 After the tribe began building a casino on the
Bradley Property, David Patchak, who lived in Wayland Township, sued DOI, arguing that it
lacked authority under the Indian Reorganization Act to place the Bradley Property in trust for the
tribe.159
Patchak’s claims were litigated in various stages and were pending before the district court in
2014 when President Obama signed into law the Gun Lake Trust Land Reaffirmation Act (“Gun

150 Id.
151 Id. at 1326.
152 Id. at 1328 (emphasis added). The Court further noted, “In pursuit of foreign policy objectives, the political branches
have regulated specific foreign-state assets by, inter alia, blocking them or governing their availability for attachment,”
and “[s]uch measures have never been rejected as invasions upon the Article III judicial power.” Id.
153 Id. at 1329–38 (Roberts, C.J., dissenting).
154 Id. at 1330.
155 Id. at 1334–35. The majority agreed that a law directing judgment for a particular party upon certain findings
“would be invalid” but concluded that Section 8772 did not actually do that. Id. at 1326 (majority opinion). Rather, in
the majority’s view, Section 8772 “suppl[ies] a new legal standard effectuating the lawmakers’ reasonable policy
judgment.” Id.
156 Id. at 1338 (Roberts, C.J., dissenting).
157 137 S. Ct. 2091 (2017).
158 Patchak v. Jewell, 828 F.3d 995, 999 (D.C. Cir. 2016).
159 Id. at 999–1000.
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Lake Act”).160 The Gun Lake Act declared that “[t]he land taken into trust by the United States for
the benefit of the Match-E-Be-Nash-She-Wish Band of Indians ... is reaffirmed as trust land, and
the actions of the Secretary of the Interior in taking that land into trust are ratified and
confirmed.”161 Additionally, the Act stripped federal courts of jurisdiction to hear claims related to
the Bradley Property:
Notwithstanding any other provision of law, an action (including an action pending in a
Federal court as of the date of enactment of [the] Act) relating to the [Bradley Property]
shall not be filed or maintained in a Federal court and shall be promptly dismissed.162
A House report on the Gun Lake Act stated that the legislation was necessary because the
underlying DOI decision might have been unlawful under then-existing precedent.163 The report
referenced Patchak’s lawsuit, noting that the legislation would “void [the] pending lawsuit.”164
After enactment of the Gun Lake Act, Patchak contended in the lower court that the Act violated
the separation-of-powers doctrine by encroaching on the judiciary’s Article III powers.165 The
district court rejected that argument, concluding that the new law deprived it of jurisdiction to
hear the case, and dismissed the suit.166 The D.C. Circuit affirmed, explaining that, so long as the
act is not otherwise unconstitutional, “[t]he language of the Gun Lake Act makes plain that
Congress has stripped the federal courts of subject matter jurisdiction to consider the merits” of
Patchak’s complaint.167 The court then proceeded to consider and reject each of Patchak’s
constitutional challenges to the act.168
Relying on Klein and its progeny, the D.C. Circuit reasoned that, just as Congress may “direct[]
courts to apply a new legal standard to undisputed facts,”169 it may also “remove[] the judiciary’s
authority to review a particular case or class of cases.”170 The court concluded that Congress
supplied a new legal standard when it enacted the Gun Lake Act, even though the act did not
directly amend the substantive laws underlying the lawsuit.171
In a fractured 4-2-3 decision, the Supreme Court affirmed the D.C. Circuit’s ruling.172 Although a
majority of the Court concluded that Patchak’s claims must be dismissed, the Justices disagreed
on the rationale, and the decision produced no precedential rule. Nonetheless, the various
opinions reflect different ways of thinking about the continuing application of Klein.
The plurality opinion, authored by Justice Thomas and joined by Justices Breyer, Alito, and
Kagan, concluded that the jurisdiction-stripping provision of the Gun Lake Act does not violate
Article III of the Constitution.173 Justice Thomas’s plurality opinion summarized Klein and its
progeny as creating the following rule: “Congress violates Article III when it compels findings or

160 Gun Lake Trust Land Reaffirmation Act, Pub. L. No., 128 Stat. 1913, § 2(a) (Sept. 26, 2014).
161 Id. § 2(a).
162 Id. § 2(b).
163 H.R. REP. NO. 113-590 (2014).
164 See id. at 2.
165 Patchak v. Jewell, 828 F.3d 995, 1001 (D.C. Cir. 2016).
166 Patchak v. Jewell, 109 F. Supp. 3d 152, 165 (D.D.C. 2015).
167 Patchak, 828 F.3d at 1001.
168 Id. at 1001–07.
169 Bank Markazi v. Peterson, 136 S. Ct. 1310, 1325 (2016).
170 Patchak, 828 F.3d at 1002.
171 Id. at 1002–03.
172 Patchak v. Zinke, 138 S. Ct. 897 (2018).
173 Id.
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results under old law. But Congress does not violate Article III when it changes the law.”174
Although it appeared in a non-binding plurality opinion, this may be a helpful summary of the
Court’s current approach to jurisdiction-stripping statutes.
Based on that rule, the Justices in the plurality agreed that Congress cannot usurp the judiciary’s
power by saying “in Smith v. Jones, Smith wins,” thus compelling an Article III court to make
certain findings under existing law.175 Nonetheless, Justice Thomas did not think Klein required
looking behind the express language of a law and inquiring into “Congress’ unexpressed
motives.”176 Instead, Justice Thomas viewed the Gun Lake Act to be a facially neutral enactment
that simply made a change to current law: “Before the Gun Lake Act, federal courts had
jurisdiction to hear these actions. Now they do not. This kind of legal change is well within
Congress’ authority and does not violate Article III.”177 In this vein, the plurality described the
Gun Lake Act as a jurisdiction-stripping statute,178 which “‘change[d] the law’ for the purpose of
Article III, just as other exercises of Congress’ legislative authority.”179 Thus, the plurality
rejected Patchak’s argument that the Gun Lake Act’s phrase shall be promptly dismissed directs
courts to reach a particular outcome.180 Rather, the plurality concluded, the phrase’s mandatory
language “‘simply imposes the consequences’ of a court’s determination that it lacks jurisdiction
because a suit relates to the Bradley Property.”181
The plurality also rejected Patchak’s contention that the Gun Lake Act had the same constitutional
flaws as the law at issue in Klein. The plurality distinguished Klein in two ways. First, Justice
Thomas emphasized that in Klein, Congress had unlawfully attempted to indirectly determine the
meaning and effect of a pardon—which the judiciary, not Congress, has the power to do—by
stripping courts of jurisdiction whenever claimants cited pardons as evidence of loyalty.182
Conversely, the Gun Lake Act, he explained, “does not attempt to exercise a power that the
Constitution vests in another branch.”183 Second, the statute in Klein purported to give federal
courts jurisdiction to hear claims related to pardons but removed that jurisdiction in the event that
a court found that a pardoned claimant should prevail.184 In contrast, the plurality opined, the Gun
Lake Act removed an entire class of cases from judicial review; it did not selectively strip
jurisdiction based on how a particular party fared.185
Justice Ginsburg and Justice Sotomayor each concurred only in the judgment, concluding that the
Gun Lake Act should be construed as restoring the United States’ immunity from suit.186 In

174 Id. at 905 (internal citations, quotation marks, and alterations omitted).
175 Id.
176 Id. at 910.
177 Id. at 905.
178 The plurality viewed the Gun Lake Act to be a jurisdiction-stripping statute despite its failure to explicitly use the
word jurisdiction, noting that the “Court does not require jurisdictional statutes to incant magic words.” Id. (internal
quotation marks and citation omitted).
179 Id. at 906 (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995)). Justice Thomas added, “The
constitutionality of jurisdiction-stripping statutes like this one is well established.” Id. at 908.
180 Id.
181 Id. (quoting Miller v. French, 530 U.S. 327, 349 (2000)). Justice Breyer made a similar point in a separate
concurrence. See id. at 911 (Breyer, J. concurring).
182 Id. at 909.
183 Id. at 909.
184 Id.
185 Id.
186 Id. at 912–13 (Ginsburg, J., concurring).
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enacting the Gun Lake Act, Justice Ginsburg opined, Congress had reinstated the government’s
sovereign immunity for all suits related to the Bradley Property.187 Neither concurring Justice
fully explained why viewing the Gun Lake Act through the lens of sovereign immunity alleviates
Klein concerns, although Justice Sotomayor voiced her agreement with the dissenting Justices
that jurisdiction-stripping statutes that “deprive[] federal courts of jurisdiction over a single
proceeding” violate the principle of Klein and “should be viewed with great skepticism.”188
Chief Justice Roberts, joined by Justices Kennedy and Gorsuch, dissented. As in Bank Markazi,
the Chief Justice took a functional view of the statute at issue. The dissent contended that the Gun
Lake Act directed the outcome of a single pending case and thus unconstitutionally intruded on
the exclusive power of the judicial branch.189 Further, Chief Justice Roberts would have held “that
Congress exercises the judicial power when it manipulates jurisdictional rules to decide the
outcome of a particular pending case.”190 In his view, there was no material difference between a
law stating that “‘[t]he court lacks jurisdiction over Jones’s pending suit against Smith’ and one
stating ‘In the case of Smith v. Jones, Smith wins,’” because in both examples, “Congress has
resolved the specific case in Smith’s favor.”191
Mountain Valley Pipeline, LLC v. Wilderness
Society
The latest major litigation concerning Congress’s ability to enact legislation targeting pending
cases was Mountain Valley Pipeline, LLC v. Wilderness Society.192 The Supreme Court did not
issue a merits decision in Mountain Valley Pipeline, but the U.S. Court of Appeals for the Fourth
Circuit issued a decision and two separate opinions that directly confronted the Klein issue in the
case. The litigation therefore provides some insight into how federal courts currently analyze
jurisdiction-stripping statutes.
Mountain Valley Pipeline was a set of consolidated cases involving legal challenges to the
Mountain Valley Pipeline, a natural gas transmission pipeline planned to run from West Virginia
to Virginia.193 Construction and operation of the pipeline require numerous federal and state
permits and approvals, and opponents of the pipeline filed multiple lawsuits challenging various
agency actions related to the project. Many of those cases were litigated in the U.S. Court of
Appeals for the Fourth Circuit, the federal court with jurisdiction over the states where the
pipeline is being constructed. Over the course of several years, the Fourth Circuit vacated
multiple approvals that were necessary for construction of the pipeline.194 The same panel of three
Fourth Circuit judges decided most of the cases related to the pipeline, leading Mountain Valley

187 Id. at 913.
188 Id. at 913 (Sotomayor, J., concurring).
189 Id. at 914–22 (Roberts, C.J., dissenting).
190 Id. at 916–18.
191 Id. at 920.
192 144 S. Ct. 42 (2023) (Mem).
193 See id.; Overview, MOUNTAIN VALLEY PIPELINE PROJECT, https://www.mountainvalleypipeline.info/overview/ (last
visited Dec. 21, 2023).
194 Sierra Club, Inc. v. U.S. Forest Service, 897 F.3d 582 (4th Cir. 2018); Sierra Club v. U.S. Army Corps of Eng’rs,
909 F.3d 635 (4th Cir. 2018); Wild Va. v. U.S. Forest Serv., 24 F.4th 915 (4th Cir. 2022); Sierra Club v. W. Va. Dep’t
of Env’t Prot., 64 F.4th 487 (4th Cir. 2023).
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Pipeline, LLC (MVP), the company constructing the pipeline, to contend that there could be a
perception of unfairness in that venue.195
On June 3, 2023, President Biden signed the Fiscal Responsibility Act of 2023 (FRA).196 Section
324(c) of the FRA provides:
Notwithstanding any other provision of law ... Congress hereby ratifies and approves all
authorizations, permits, verifications, extensions, biological opinions, incidental take
statements, and any other approvals or orders issued pursuant to Federal law necessary for
the construction and initial operation at full capacity of the Mountain Valley Pipeline[.]197
The same subsection further directs the relevant federal agencies to “continue to maintain”
relevant approvals or orders necessary for the construction and operation of the pipeline.198
The FRA also includes language apparently intended to foreclose further consideration of the
pipeline by the Fourth Circuit. Section 324(e)(1) of the FRA provides: “Notwithstanding any
other provision of law, no court shall have jurisdiction to review” actions of certain federal or
state agencies granting approvals necessary for the construction and operation of the pipeline,
“whether issued prior to, on, or subsequent to the date of enactment of this section, and including
any lawsuit pending in a court as of the date of enactment of this section.”199 To the extent
pipeline opponents might challenge that jurisdictional provision itself, Section 324(e)(2) grants
the U.S. Court of Appeals for the D.C. Circuit “original and exclusive jurisdiction over any claim
alleging the invalidity of this section or that an action is beyond the scope of authority conferred
by this section.”200
Three cases relevant to the dispute over FRA Section 324 were consolidated in the Fourth Circuit
under the name Appalachian Voices v. U.S. Department of the Interior.201 The litigation brought
two key issues before the Fourth Circuit. First, the petitioners challenging the pipeline filed
motions to stay certain agency permits and approvals related to the pipeline pending judicial
review.202 The federal government and MVP opposed the stay motions and moved to dismiss the
consolidated petitions for review for lack of jurisdiction.203 MVP and the government argued that
Section 324(e) of the FRA deprived the Fourth Circuit of subject matter jurisdiction over the
petitions for review. As the company described Section 324(c) of the FRA, “Congress explicitly
‘ratifie[d] and approve[d]’ all federal authorizations, permits, and other actions necessary for the
construction and operation” of the pipeline, “[n]otwithstanding any other provision of law.”204
Both MVP and the government also asserted that, as a result of that authorization, the petitioners’

195 Rachel Weiner, Controversial Federal Court Changes Debated in Manchin Negotiations, WASHINGTON POST (Aug.
5, 2022, 6:00 AM), https://www.washingtonpost.com/dc-md-va/2022/08/05/mountain-valley-manchin-deal-court (last
visited Dec. 22, 2023).
196 Fiscal Responsibility Act of 2023, § 324 (c), Pub. L. No. 118-5, 137 Stat. 10, 47.
197 Id. § 324 (c)(1); 137 Stat. 47.
198 Id. § 324 (c)(2); 137 Stat. 47.
199 Id. § 324 (e)(1); 137 Stat. 47–48.
200 Id. § 324 (e)(2); 137 Stat. 48.
201 Appalachian Voices v. U.S. Dep’t of the Interior, 78 F.4th 71 (4th Cir. 2023) (Nos. 23-1384, 23-1592, 23-1592).
202 A stay is a form of temporary injunctive relief that essentially serves to pause litigation or other proceedings. See
CRS Report R46902, Nationwide Injunctions: Law, History, and Proposals for Reform, by Joanna R. Lampe (2021). In
these cases, a stay of one or more agency approvals would mean that MVP would not be able to move forward with
construction or operation of the pipeline while federal courts considered the petitioners’ challenges.
203 Motion to Dismiss (MVP), Appalachian Voices, 78 F.4th 71 (4th Cir. 2023) (No. 23-1384, ECF No. 36, at 9) (June
5, 2023); Motion to Dismiss (Federal Respondents), Id. (No. 23-1384, ECF No. 41, at 8) (4th Cir. June 14, 2023).
204 Motion to Dismiss (Federal Respondents), supra note 203, at 7; Motion to Dismiss (MVP), supra note 203, at 5.
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challenges to agency approvals of the pipeline based on pre-FRA law must fail, so the cases had
become moot because the court could no longer award the petitioners’ requested relief.205
The petitioners opposed the motions to dismiss, arguing that FRA Section 324 could not validly
require dismissal because Section 324 was unconstitutional.206 The petitioners relied on Klein,
arguing that Section 324 violates separation-of-powers limits by requiring courts to decide cases
in a certain way. The petitioners recognized the recent decision upholding a jurisdiction-stripping
provision in Patchak, but they argued that the case was not binding because no reasoning earned
the support of more than four Justices. The Appalachian Voices petitioners instead asked the court
to adopt the reasoning of the dissent in Patchak, in which Chief Justice Roberts, joined by
Justices Kennedy and Gorsuch, argued that Congress impermissibly “exercises the judicial power
when it manipulates jurisdictional rules to decide the outcome of a particular pending case.”207
The Fourth Circuit issued orders staying the relevant agency actions during the pendency of the
petition for review without directly addressing the Klein issue.208 MVP then filed with the
Supreme Court an emergency application to vacate the stays.209 On July 27, 2023, the Supreme
Court granted the application to vacate the stays issued by the Fourth Circuit without a written
opinion.210 While the Court may have considered the constitutionality of Section 324 in ruling on
the stay application, its order did not discuss the merits of the case, including whether Congress
validly limited federal court jurisdiction to consider challenges to the pipeline. Thus, the Supreme
Court’s action did not expressly require the Fourth Circuit to dismiss the petitions for review
challenging the pipeline.
Instead, the Fourth Circuit on remand considered the constitutionality of Section 324, and it
granted the motions to dismiss the petitions for review.211 Judge Wynn’s opinion for a unanimous
panel held that FRA Section 324(c) rendered the petitions moot by ratifying and approving all
necessary authorizations for the pipeline and that FRA Section 324(e)(1) eliminated the Fourth
Circuit’s jurisdiction over the petitions.212
Judge Gregory and Judge Thacker each wrote concurring opinions. Judge Gregory’s concurrence
agreed that the case must be dismissed under current law but expressed concerns that Section 324

205 Supra note 203.
206 Petitioners’ Opposition to Federal Respondents’ Motion to Dismiss and Intervenor’s Motion to Dismiss or, in the
Alternative, for Summary Denial, Appalachian Voices, 78 F.4th 71 (No. 23-1384, ECF No. 43) (4th Cir. June 26,
2023).
207 Id. at 15 (citing Patchak v. Zinke, 583 U.S. 244, 259 (2018) (Roberts, C.J., dissenting)).
208 See Order, Wilderness Society, 2023 WL 4784199 (No. 23-1592, ECF No. 42) (4th Cir. July 10, 2023); Order,
Appalachian Voices, 78 F.4th 71 (No. 23-1384, ECF No. 55, at 2) (4th Cir. July 11, 2023). As is common with orders
granting or denying temporary injunctive relief, the court’s decisions disposed of the motions for stay without written
analysis of the legal issues presented.
209 Emergency Application to Chief Justice John G. Roberts, Jr. to Vacate the Stays of Agency Authorizations Pending
Adjudication of the Petitions for Review, No. 23A35, 2023 WL 4625539 (July 14, 2023). The federal government
supported the application, as did the House of Representatives and several Members of Congress as amici curiae.
Federal Respondents’ Response in Support of Emergency Application to Vacate Stays of Agency Authorization
Pending Review (No. 23A35) (Jul. 21, 2023); Brief for the U.S. House of Representatives as Amicus Curiae
Supporting Applicant, No. 23A35, 2023 WL 4844053 (Jul. 20, 2023); Federal Respondents’ Response in Support of
Emergency Application to Vacate Stays of Agency Authorization Pending Review, No. 23A35, 2023 WL 4706845
(Jul. 21, 2023); Brief of Current Members of the U.S. Congress, et al, as Amici Curiae Supporting Applicant, No.
23A35, 2023 WL 4706836 (Jul. 19, 2023).
210 Mountain Valley Pipeline, LLC v. Wilderness Soc’y, 144 S. Ct. 42 (2023) (Mem).
211 Appalachian Voices v. U.S. Dep’t of the Interior, 78 F.4th 71 (4th Cir. 2023).
212 Id. at 76.
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prevented the Fourth Circuit from performing its constitutional role of judicial review213 and that
“the separation between the legislative and judicial branches presently lacks fortification.”214 If
Section 324 is constitutional, he argued, “Congress will have found the way to adjudicate by
legislating for particular cases and for particular litigants, no different than the governmental
excesses our Framers sought to avoid.”215 Judge Thacker wrote in her concurrence that “Congress
has acted within its legislative authority in enacting Section 324(e)(2),” but “Congress’s use of its
authority in this manner threatens to disturb the balance of power between co-equal branches of
government.”216 Judge Thacker asserted that, currently, “we have no clear guidance from the
Supreme Court on where the line between legislative and judicial power lies, especially when
Congress acts for the purpose of influencing pending litigation or even going so far as to pick a
winner in that pending litigation,”217 and she called on the Court to provide “a firm limit on
Congress’s intrusion into the judicial branch.”218
Considerations for Congress
Cases since Klein have limited the reach of that decision. However, the 1872 case remains good
law, and Klein and its progeny provide some useful guideposts for Congress in fashioning
jurisdiction-stripping legislation and measures that target pending litigation. Under Klein,
Congress cannot “prescribe a rule for the decision of a cause in a particular way.”219 Cases
interpreting Klein have construed that passage to mean that Congress cannot impede the
judiciary’s power to decide cases independently—for example, by telling a court how it should
rule in a specific case or how to apply existing law to the facts in a given case.220 Relatedly, under
Plaut, Congress cannot interfere with the finality of judgments by requiring courts to reopen
finally decided lawsuits.221
Within those boundaries, Congress has some ability to influence how the judiciary resolves
lawsuits without violating the separation of powers. Congress can do this by regulating federal
courts’ jurisdiction222 or by enacting substantive statutes that the judiciary must apply to resolve
legal disputes.223 For instance, it does not offend separation-of-powers limitations for Congress to
create or amend a law that retroactively applies to lawsuits that began before the new law was
enacted.224 Such new substantive law can target a specific case or set of cases.225 Additionally, it

213 Id. at 81–82 (Gregory, J. concurring).
214 Id. at 84.
215 Id.
216 Id. (Thacker, J. concurring).
217 Id. at 85.
218 Id.
219 See United States v. Klein, 80 U.S. (1 Wall.) 128, 146 (1872).
220 See Bank Markazi v. Peterson, 136 S. Ct. 13010, 1323 n.17; id. at 1330 (Roberts, C.J., dissenting); Klein, 80 U.S. at
145–48.
221 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 225–32 (1995).
222 See Sheldon v. Sill, 49 U.S. 441, 449 (1850) (“Courts created by statute can have no jurisdiction but such as the
statute confers.”).
223 See, e.g., Miller v. French, 530 U.S. 327, 349 (2000).
224 See Bank Markazi, 136 S. Ct. at 1324–26; Miller, 530 U.S. at 346–49; Plaut, 514 U.S. at 226; Robertson v. Seattle
Audubon Soc’y, 503 U.S. 429, 437–39 (1992). Retroactive legislation may also raise constitutional issues unrelated to
separation of powers. See CRS In Focus IF11293, Retroactive Legislation: A Primer for Congress, by Joanna R.
Lampe (2019).
225 Bank Markazi, 136 S. Ct. at 1327–28; Plaut, 514 U.S. at 239 n.9.
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appears legislation can be designed in a manner that ensures victory for a particular party so long
as the reviewing court may still independently apply the new law to the facts of the case.226 This
principle applies even if the new law effectively predetermines the outcome of a pending
lawsuit.227 As one example, legislation designed to ensure a particular judicial outcome may be
accomplished by enacting a procedural rule, such as eliminating a defense such as res judicata.228
Recent cases have done relatively little to clarify the outward bounds of Congress’s ability to
enact legislation that amends the law underlying particular litigation. A majority of the Patchak
Court concluded that Congress is authorized to limit the reviewability of a class of pending cases,
whether through a jurisdiction-stripping statute or a statute that restores the government’s
immunity from suit.229 Patchak suggests that this principle applies even if Congress legislates in
such a way that the government will necessarily prevail in the only lawsuit that the legislation
affects.230 On the other hand, all the Justices on the Patchak Court also appear to agree that
Congress cannot say, “In Smith v. Jones, Smith wins.” Ultimately, the lack of a majority opinion
in the case means that it provides no binding holding as to when a facially neutral law that
functionally ends pending litigation in the favor of one party amounts to a separation-of-powers
violation.231
Mountain Valley Pipeline likewise provides limited guidance on the scope of Congress’s power to
limit court jurisdiction in a way that disposes of pending cases. By vacating the Fourth Circuit’s
stay orders, the Supreme Court may have tacitly indicated that the FRA’s jurisdiction-stripping
provision is constitutional, but without a written opinion, it is impossible to know the extent to
which the Court considered the separation-of-powers question.
On remand in the Mountain Valley Pipeline litigation, the Fourth Circuit accepted the
constitutionality of FRA Section 324(e)(1). Both Judge Gregory’s and Judge Thacker’s
concurrences in the Fourth Circuit’s dismissal decision raised questions about the scope of
Congress’s power to strip federal courts of jurisdiction over pending cases and noted that the
Supreme Court could provide additional guidance on the issue. Congress may also evaluate those
questions, among others, when considering future jurisdictional changes that could affect pending
litigation. As a matter of current law, however, the Fourth Circuit’s dismissal decision indicates
that Congress has significant authority to change substantive law and alter federal court
jurisdiction in ways that influence pending cases.

226 Bank Markazi, 136 S. Ct. at 1324–26 (2016).
227 Id. at 1325 (“Congress may indeed direct courts to apply newly enacted, outcome-altering legislation in pending
civil cases.”).
228 See United States v. Sioux Nation of Indians, 448 U.S. 371, 397–402 (1980).
229 Patchak v. Zinke, 138 S. Ct. 897, 902–11 (2018); Id. at 912–13 (Ginsburg, J., concurring); Id. at 913–14
(Sotomayor, J., concurring).
230 Patchak, 138 S. Ct. at 910.
231 Compare Patchak, 138 S. Ct. at 905 (distinguishing the Gun Lake Act from a law that says, “In Smith v. Jones,
Smith wins,” concluding that the Gun Lake Act “changes the law” and thus is permissible under Article III), and id. at
911 (Breyer, J., concurring) (“The statutory context makes clear that this is not simply a case in which Congress has
said, ‘In Smith v. Jones, Smith wins.’”), with id. at 914 (Roberts, C.J., dissenting) (“Two Terms ago, this Court
unanimously agreed that Congress could not pass a law directing that, in the hypothetical case of Smith v. Jones, ‘Smith
wins.’ Today the plurality refuses to enforce that limited principle in the face of a very real statute that dictates the
disposition of a single pending case.”) (internal citations omitted).
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Author Information

Joanna R. Lampe

Legislative Attorney

Acknowledgments
Former Legislative Attorneys Sarah Herman Peck and Kevin M. Lewis authored earlier versions of this
report. For questions about the report, please contact the listed author.

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