AGAINST CONGRESSIONAL CASE SNATCHING.

• Author: Krotoszynski, Ronald J., Jr.

TABLE OF CONTENTS INTRODUCTION 795 I. JUDICIAL INDEPENDENCE IN HAMILTON'S TIME AND OURS: THE CONTINUING SALIENCE OF THE SEPARATION OF POWERS DOCTRINE 797 A. The Least Dangerous Branch Thesis and the Growing Problem of Congressional Encroachments on the Constitutional Authority of the Article III Courts 799 B. The Waxing and Waning of Formalism in Separation of Powers Analysis in the Contemporary Supreme Court 812 II. CONGRESSIONAL CASE SNATCHING IS A REAL AND GROWING PROBLEM THAT ENDANGERS THE ABILITY OF THE FEDERAL COURTS TO SECURE AND ADVANCE RULE OF LAW VALUES 818 A. Patchak v. Zinke: Congress Merely Changing the Law or Prescribing a Rule of Decision? 820 1. The Klein Rule 821 2. Patchak v. Zinke 824 3. Bills of Attainder and the Presumption Against Implied Repeal 835 B. Oil States Energy Services v. Greene's Energy Group: "Now You See It, Now You Don't"--Vesting Merely Contingent Adjudicatory Authority to Hear and Decide Cases in the Article III Courts 840 1. OSE and the Problem of Advisory Opinions 841 2. Proposed Solutions to OSE's Advisory Opinion Problem--Primary Jurisdiction and Certification 846 III. CONGRESSIONAL CASE SNATCHING CONSTITUTES A CLEAR AND PRESENT DANGER TO THE INSTITUTIONAL AUTONOMY AND INDEPENDENCE OF THE ARTICLE III COURTS 861 A. Enforcing the Separation of Powers Doctrine to Protect Judicial Authority Would Not Prevent or Impede Legitimate Congressional Policy Making 861 B. Congressional Case Snatching Endangers Both the Independence and the Authority of the Article III Courts 865 CONCLUSION: SEPAEATION OF POWERS THEORY AND DOCTRINE MUST TAKE ACCOUNT OF THE STRUCTURAL FACT THAT THE LEAST DANGEROUS BRANCH IS ALSO THE WEAKEST BRANCH 869 INTRODUCTION

Alexander Hamilton, in The Federalist Papers, famously observed that the federal courts constitute "the least dangerous" branch of the federal government because they have "no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever." (1) He added that the judiciary "may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." (2) By way of contrast, the President "dispenses the honors" and also "holds the sword of the community," and Congress "not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated." (3)

If we take seriously Hamilton's observations about the relative institutional strength of the three branches of the federal government, what implications should they have for theorizing and applying the separation of powers doctrine to novel schemes that attempt either to strip cases from the Article III courts or to constrain, if not control, their disposition?

This Article argues that in order to forestall bad endings, the federal courts in general, and the Supreme Court in particular, should more zealously guard their institutional authority by more strictly enforcing the separation of powers doctrine when Congress attempts to usurp or transfer away pieces of the judicial power of the United States from the Article III courts (including even relatively small ones). It proceeds in three Parts.

Part I considers the relevance of Hamilton's least dangerous branch thesis to congressional attempts to dictate how federal courts should rule in pending cases or to reassign pending judicial business entirely outside the Article III courts (phenomena that we denominate "congressional case snatching"). This Part argues that Hamilton's well-stated concerns about the inherent weakness of the least dangerous branch require the federal courts to resolutely turn back any and all efforts by Congress or the President to usurp or reassign the judicial power of Article III courts. Moreover, this Part highlights the waxing and waning of formalism in separation of powers analysis in the contemporary Supreme Court. What's more, it provides an overview of the formalism/functionalism dichotomy.

Part II traces the meandering path that the Supreme Court has charted, zigging and zagging between strict formalist enforcement of the separation of powers in the context of congressional case snatching (Stern v. Marshall and Executive Benefits Insurance Agency v. Arkinson) and more relaxed functionalist analysis (Patchak v. Zinke, Oil States Energy Services v. Greene's Energy Group, and Commodity Futures Trading Commission v. Schor). In this Part, we show how a strong and stable majority of the contemporary Supreme Court has come to embrace a distinctly functionalist approach that precludes the invalidation of congressional efforts to reassign judicial business from the Article III courts. We believe that the Supreme Court has overstated the benefits of these congressional incursions into the constitutional territory of the Article III courts and, concurrently, seriously underestimated the potential risks that congressional case snatching schemes present.

Part III explains why this functionalist turn constitutes a mistake (and a big one) and should be rejected in favor of a more formalist approach. Drawing on the Hamiltonian least dangerous branch thesis, we argue that the inherent structural weakness of the federal courts requires judicial vigilance against congressional case snatching. Finally, we offer a brief overview and conclusion of our main themes, arguments, and proofs.

Iconic federal courts scholar James Pfander has observed woefully that "[s]cholars have searched, with mixed success, for an organizing and limiting principle in the somewhat muddled jurisprudence ... govern[ing]" the reassignment of adjudicative responsibilities from the Article III courts. (4) What is true of legal scholars would also seem to hold true of the federal courts. (5) Yet, this lack of agreement on the rules of the road does not seriously undermine, much less refute, the structural concerns that arise quite organically from Hamilton's least dangerous branch thesis. Simply put, the least dangerous branch is also the most vulnerable branch. The federal courts should take greater care to incorporate this fact of constitutional life into separation of powers doctrine.

1. JUDICIAL INDEPENDENCE IN HAMILTON'S TIME AND OURS: THE CONTINUING SALIENCE OF THE SEPARATION OF POWERS DOCTRINE

   "Basic to the constitutional structure established by the Framers was their recognition that '[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."' (6) As a result, the Framers devised a national government that reflected Montesquieu's conception of the separation of powers; (7) the federal government would comprise three distinct branches, with each branch to exercise inherently distinct governmental powers and to do so largely independently of the other two branches. Notably, our Constitution ensures that the judicial power of the United States "must be reposed in an independent Judiciary." (8) Thus, the "independence of the Judiciary [must] be jealously guarded." (9)

   Part I reviews the implications of Alexander Hamilton's least dangerous branch thesis. It posits that, if one credits this idea seriously, it necessarily follows that the federal courts must zealously oppose and systematically fend off attempted raids by Congress or the President to commandeer the constitutional authority of the Article III courts (namely, the "judicial Power" of the United States). In addition, Part I discusses how the Supreme Court has systematically failed to aggressively, or even reliably, enforce the separation of powers doctrine in instances in which the institutional rights and prerogatives of the federal courts are squarely at issue. More specifically, Part I provides several salient examples of recent minor attacks on the authority of the Article III courts that could lead to more, and perhaps even more ambitious, instances of congressional case snatching. Lastly, this Part provides an overview of the waxing and waning of formalism in separation of powers analysis in the contemporary Supreme Court.

   1. The Least Dangerous Branch Thesis and the Growing Problem of Congressional Encroachments on the Constitutional Authority of the Article III Courts

      In advancing his least dangerous branch thesis, Hamilton's core claim--namely that the judicial branch is particularly weak and highly vulnerable to incursions from the political branches--would provide a strong theoretical and empirical basis for the federal courts to strictly enforce the separation of powers in instances that involve invasions of the constitutional authority of the federal courts. (10) Because, as Justice William J. Brennan, Jr., has explained, "[t]he Federal Judiciary was... designed by the Framers to stand independent of the Executive and Legislature--to maintain the checks and balances of the constitutional structure, and also to guarantee that the process of adjudication itself remained impartial," (11) the Hamiltonian inherent structural weakness thesis could easily justify a more cautious approach towards efforts to tinker with the constitutional authority of the Article III courts. (12) From this vantage point, as Justice Brennan argues, "Art[icle] III both defines the power and protects the independence of the Judicial Branch." (13)

      Under this approach, the federal courts should resolutely turn back any and all efforts by Congress or the President either to usurp or to reassign "[t]he judicial Power of the United States." (14) The inherent structural weakness of the federal courts, relative to the political branches, requires judicial vigilance rather than complacence and accommodation. (15) Because Congress and the President have more and better tools to fend off attempted raids on each...