Why Klein (Still) Matters: Congressional Deception and the War on Terrorism

No one seriously claims that the Supreme Court’s 1872 decision in United States v. Klein is a model of clarity. Justice Field’s opinion for the Court is as enigmatic as it is intriguing, providing the only pre-2008 example of a Supreme Court decision invalidating an Act of Congress for unconstitutionally depriving the federal courts of jurisdiction. The million dollar question, of course, is why the Court so ruled, and no amount of scholarship, no matter the quality of the analysis or the intellectual abilities of the author, has managed to settle the issue to any meaningful degree. Indeed, even when the Klein “rule” has been deployed by contemporary jurists as a basis for invalidating federal legislation, such efforts have, charitably, failed to persuade. Thus, although virtually all observers agree that Klein bars Congress from commanding the courts to rule for a particular party in a pending case, the question remains whether it stands for any broader constraint on legislative power.

Professor Howard Wasserman’s response to this state of doctrinal, academic, and juridical indeterminacy is to suggest that it conclusively establishes Klein’s insignificance, and that Klein’s importance to the modern Federal Courts canon is really a “myth,” born out of a “false belief that Klein establishes vigorous judicially enforceable constitutional limitations on Congress.”  To be sure, Wasserman does not believe Klein to be devoid of force; rather, he concludes that “[m]ost blatantly Klein violative laws are never enacted; Klein-vulnerable laws that have been enacted raise no meaningful or serious Klein problems and should survive any separation of powers challenge.”

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