Academic journal article Harvard Law Review

Article III - Judicial Power - Congressional Limits - Patchak V. Zinke

Academic journal article Harvard Law Review

Article III - Judicial Power - Congressional Limits - Patchak V. Zinke

Article excerpt

The suggestion that "'the judicial Power of the United States ... can no more be shared' with another branch than 'the Chief Executive, for example, can share with the Judiciary the veto power'" has an axiomatic ring to it. (1) Yet in practice the federal courts are substantially creatures of Congress. Congress has broad authority to steer some disputes into non-Article III tribunals; may tailor federal jurisdiction with few express constraints; (2) may withdraw without obvious limit the federal government's consent to suit; and may, of course, make the law federal courts apply. Against this backdrop, the Supreme Court has continued to recite a nominal limit: if nothing else, Congress "usurp[s] a court's power to interpret and apply the law" (3) when it writes a statute that reads "in 'Smith v. Jones,' 'Smith wins.'" (4) Last Term, in Patchak v. Zinke, (5) a fractured Court made clear that that principle limits very little. Though no line of reasoning won a majority, six Justices voted to uphold a statute difficult to distinguish from "Patchak loses." The decision is a defeat for the proposition, typically traced to the Court's 1871 decision in United States v. Klein, (6) that Article III meaningfully constrains congressional power to direct results in pending cases. (7) And if the defeat turns out to be final, little harm little foul. Inquiries into the inviolate scope of the judicial power are almost hopelessly indeterminate, (8) and Klein's limit did little to no work in broader constitutional context.

David Patchak's suit centered on a dispute over a parcel of land, the Bradley Property, in southwest Michigan. (9) In 2005, the Secretary of the Interior announced her intent to take the Property into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, which hoped to build a casino there. (10) In 2008, Patchak, an unhappy neighbor, sued under the Administrative Procedure Act (APA) to enjoin the action, arguing that the authority invoked--the Indian Reorganization Act (11) (IRA)--permitted Interior to take land into trust only on behalf of tribes that were under federal jurisdiction when the statute passed in 1934. (12) It soon became clear Patchak's argument was a winner. By 2009, the Court had embraced this interpretation of the IRA in another party's suit. (13)

Notwithstanding that good turn, Patchak still faced jurisdictional obstacles that would take years to litigate. In his first trip to the Court, he overcame objections that he lacked prudential standing and that federal sovereign immunity barred his suit. (14) It now seemed obvious Patchak would win on remand--but in the interim, the Band had built its casino. (15) While there was no appetite in Congress to overturn wholesale the Justices' interpretation of the IRA, (16) lawmakers took note of the reliance interests now at stake and passed by overwhelming margins the Gun Lake Trust Land Reaffirmation Act, (17) a short statute providing:


(a) IN GENERAL.--[The Bradley Property] is reaffirmed as trust land, and the actions of the Secretary of the Interior in taking that land into trust are ratified and confirmed.

(b) NO CLAIMS.--Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed. (18)

As Patchak would object on remand, the Act seemed designed to resolve his case and his case alone, without changing otherwise applicable law. (19) No other challenges to the land's trust status were pending; no others could be brought because the APA's statute of limitations had run. (20) All the same, pointing to [section] 2(b), the district court with custody of Patchak's suit dismissed it. (21) This over his objections that the statute violated the separation of powers; that it violated the Petition Clause; that it extinguished his property interest in his suit without due process of law; and that it amounted to a Bill of Attainder. …

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