Professor Wasserman offers several evaluations of the Supreme Court’s 1872 decision in Klein. In places he states that it was issued in a “pathological period,” is confusing to read, and therefore difficult to apply. Yet elsewhere in his article he finds the decision to be understandable and recognizes that it offers several clear separation of powers principles. Between those two competing and conflicting positions, the latter analysis is on firmer ground. His article focuses on two recent national security issues – the 2008 statute granting immunity to telecoms that provided assistance to NSA surveillance, and the Military Commissions Act (MCA) of 2006 – to determine whether they are consistent with and controlled by Klein.
Professor Wasserman describes Klein as the product of what Vincent Blasi “has called a period of constitutional pathology, a period reflecting ‘an unusually serious challenge to one or more of the central norms of the constitutional regime.’” Pathological periods, Blasi says, are marked by a “sense of urgency stemming from societal disorientation if not panic.” They come at a time of “a shift in basic attitudes, among certain influential actors if not the public at large,” concerned with what Wasserman calls “central constitutional commitments.” Panic can affect structural features, including formal and informal separation of powers and checks and balances, which may “exert much less of a restraining influence” on the political branches and the public.” Rigorous judicial review “must be reserved for extreme cases challenging pathological laws and action . . . as a bulwark against overreaching officials and citizens.”
Klein arose, Wasserman points out, “in a previous pathological period –Reconstruction.” That is true, but what does that say about the clarity of the decision and subsequent ability to apply it with confidence? Good things and bad things come out of periods of stress and panic. The“pathological” period after the Civil War yielded three constitutional amendments: the Thirteenth (abolishing slavery), the Fourteenth (establishing new rights), and the Fifteenth (extending the right to vote). Those years opened up new professional opportunities for women. Some branches of government may perform well, others poorly. The requirement each time is to analyze a particular case or action to determine how well a political institution carries out its constitutional duties. In considering Klein in the context of the politics of 1872, the Court was clearly under stress but issued a decision that pushed back against indefensible legislation and did so in a manner that gave clear and valued guidance to future legislation and litigation.