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Opinion analysis: A broad addition to Congress’s powers?


Brushing aside the dissenters’ complaint that it was upsetting the Constitution’s balance of powers, and walking further away from a historic Civil War-era precedent on judicial independence, the Supreme Court on Wednesday upheld Congress’s power to give one side in a federal lawsuit a victory, if it stops just short of flatly declaring that they are the winner.

The six-to-two decision in Bank Markazi v. Peterson upheld the constitutionality of a 2012 law in which Congress directed a federal court in New York City how to go about the turnover of about $1.75 billion of the bank’s assets to victims of terrorist acts in the Mideast that Iran’s government was accused of sponsoring.  Just what Congress had done in that law, however, was a matter of vigorous dispute between the Court’s majority and dissenting Justices.

Justice Ruth Bader Ginsburg, writing for the majority, found that the six-year-old law did not flatly dictate the outcome of the victims’ claims but actually changed the controlling law underlying those claims, a typical legislative task.  What Congress had left for the courts to do in deciding the case, she said, was not just a “fig leaf.”  She argued that the law was little different from many narrow laws that Congress has passed, some for the benefit of a single party in a lawsuit.

However, Chief Justice John G. Roberts, Jr., writing for the dissenters, found that Congress “commandeer[ed] the courts to make a political judgment look like a judicial one,” leaving the federal court in the Iran assets case with nothing to do but ratify the choice Congress already had made, awarding the assets to the victims and their families.

No matter which view more accurately portrayed the legal situation, the actual result will become clear: the assets belonging to the Iran government’s central bank are now to be distributed to more than 1,300 Americans who are victims or relatives of victims of terrorism, including the 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon, and the 1996 bombing of the Khobar Towers in Saudi Arabia.  In the Beirut attack, 241 U.S. servicemen were killed and dozens were injured; in the incident in Saudi Arabia, nineteen U.S. servicemen were killed and hundreds were injured.

Once the funds are distributed, the question will remain what effect the Court’s decision will have on the Constitution’s separation of powers between Congress and the courts.  One side effect of the majority opinion was its negative view of an 1872 decision, United States v. Klein, that has always stood for the proposition that Congress intrudes on the powers of the federal judiciary if it tells them how to decide a pending case, or cases.

The majority opinion dismissed that precedent as a puzzling ruling that really stands for little more than that Congress should not interfere with the power of the president to pardon those found guilty of crimes.  The Klein decision struck down a federal court directing courts how to treat presidential pardons of Confederate sympathizers who were seeking to recover property confiscated from them during the Civil War.

The dissenting opinion insisted that the old precedent stood strongly for the proposition that the grant of power to the courts under the Constitution’s Article III imposed a strict limit of the power of Congress to tell the courts how to decide cases pending before them.  In the dissenters’ view, Wednesday’s ruling cleared the way in the future for Congress to “unabashedly pick the winners and losers in particular pending cases.”

At least part of what appeared to have influenced the majority to rule for the victims, by sustaining the 2012 law, was the view expressed in the Ginsburg opinion that it made a difference that this particular lawsuit had focused on a dispute affecting foreign relations — a field in which the judiciary has less power than the other branches of the federal government.  (That part of the Ginsburg opinion was not joined by Justice Clarence Thomas, who otherwise joined the majority’s reasoning.)

Joining the Ginsburg opinion besides Thomas were Justices Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, and Anthony M. Kennedy.  The Chief Justice’s dissenting opinion was joined by Justice Sonia Sotomayor.


Recommended Citation: Lyle Denniston, Opinion analysis: A broad addition to Congress’s powers?, SCOTUSblog (Apr. 20, 2016, 12:39 PM),