# Mary Bartlett, on Behalf of Josephine Neuman v. Otis R. Bowen, Secretary, Department of Health and Human Services

> Court of Appeals for the D.C. Circuit · July 31, 1987 · 816 F.2d 695

URL: https://www.frixlaw.com/law-library/cases/9476052

## Case

- **Full name:** Mary BARTLETT, on Behalf of Josephine Neuman, Appellant, v. Otis R. BOWEN, Secretary, Department of Health and Human Services
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** July 31, 1987
- **Citations:** 816 F.2d 695; 259 U.S. App. D.C. 391
- **Precedential status:** Published
- **Opinion:** Dissent by Bork
- **Judges:** Edwards, Bork, Wright
- **Cited by:** 72 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9476052

## How later opinions describe it (automated extraction)

- holding that the Medicare Act’s administrative exhaustion requirement did not bar the court from considering a constitutional challenge to the Act itself
- noting that “preclusion of judicial review of constitutional claims” raises due process concerns

## Opinion text

BORK, Circuit Judge,
dissenting:
Appellant Mary Bartlett sued, on behalf of the estate of her deceased sister, Josephine Neuman, to recover $286 in Medicare benefits that the Secretary of the Department of Health and Human Services had denied as reimbursement. The Medicare Act requires the Secretary to deny her reimbursement because of previously reimbursed costs of nursing care in a Christian Science facility. Bartlett maintained below that this statutory provision is unconstitutional, violative of the first amendment’s guarantee of the free exercise of religion and the equal protection component of the fifth amendment’s guarantee of due process. These contentions are not before us.
The district court dismissed Bartlett’s complaint for lack of subject matter jurisdiction because the Medicare Act denies judicial review of the Secretary’s decision in any case where the amount claimed is less than $1000. It is this jurisdictional issue that we must decide. Appellant contends that the statute should be read not to deny jurisdiction and, that if it is so read, the bar of judicial review is unconstitutional. The majority agrees with both of those positions. I agree with neither. My conclusion rests upon Supreme Court precedents, which, it must be said, are not free of ambiguity, at least as to the constitutional issue. Since the issue is important in litigation about social insurance benefits programs, it is to be hoped that the Court will soon revisit and clarify this area of law.
I.
To interpret the statute before us as not intended to cut off judicial review of all claims under $1000 is to deform the statutory text and the Supreme Court precedent as well as to bury prematurely the law of sovereign immunity.
*712 A.
Before discussing the specific terms of the statutory provisions it will be useful to place them in their legal context. The provisions in question allow claimants access to the courts for some claims but not for others. It is easily shown that the allowance of judicial review is a waiver of sovereign immunity and that the disallowance of such review is an assertion of sovereign immunity. The Supreme Court stated in Bowen v. City of New York, — U.S. -, 106 S.Ct. 2022, 2029 , 90 L.Ed.2d 462 (1986), a case in which constitutional as well as statutory challenges were advanced, that 42 U.S.C. § 405 (g), which permits judicial review of the Secretary’s decisions on Social Security disability benefits, is a waiver of sovereign immunity so that the provision’s statute of limitations is a condition on that waiver and, as such, must be strictly construed.
The Social Security and Medicare benefits programs are not only close parallels but are statutorily integrated. Thus, as will be seen, the Court’s statement in Bowen v. City of New York shows that we are faced with an assertion of sovereign immunity in this case. Section 405(g) of Title 42 is, as the Court said, a waiver of sovereign immunity. 1 Section 405(h) states that there shall be no judicial review of any decision of the Secretary “except as herein provided.” 2 If section 405(g) is a waiver of sovereign immunity, it is impossible to read section 405(h) as anything other than an assertion of such immunity with stated exceptions. Section 405(h) is incorporated into the Medicare Act by section 1395Ü of Title 42. 3 But section 1395ff(b) provides that any individual dissatisfied with a determination as to the amount of Medicare benefits (including a determination that the amount is zero) shall be entitled to judicial review of the Secretary’s final decision as is provided in section 405(g), which is the waiver provision. Section 1395ff(b)(2) then qualifies the waiver by stating that judicial review shall not be available if the amount in controversy is less than $1000. All of section 1395ff is thus subsidiary to section 405(h)’s retention of sovereign immunity “except as herein provided.” Judicial review is provided and limited in sections 1395ff(b)(l) and (2). Given the ruling of Bowen v. City of New York, therefore, it is clear that sections 1395ff(b)(l) and (2) waive sovereign immunity as to claims of $1000 and up and expressly assert sovereign immunity as to claims under $1000. 4 That means Congress has asserted sovereign immunity as to Bartlett’s claim, and the only question before us is whether Congress may constitutionally do so. There seems no doubt Congress may.
Once it is recognized that sovereign immunity is present, a solid body of doctrine comes into play. Whenever Congress gives its consent to suit, that consent, being “a relinquishment of sovereign immuni *713 ty, must be strictly interpreted.” United States v. Sherwood, 312 U.S. 584, 590 , 61 S.Ct. 767, 771 , 85 L.Ed. 1058 (1941). Moreover, speaking of the Court of Claims’ inability to grant a declaratory judgment, the Supreme Court has held to be “settled propositions” that “jurisdiction to grant relief depends wholly upon the extent to which the United States has waived its sovereign immunity to suit and that such a waiver cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 , 89 S.Ct. 1501, 1503 , 23 L.Ed.2d 52 (1969) (emphasis added). Here, by contrast, there is an unequivocal assertion of sovereign immunity.
These principles of sovereign immunity suffuse every aspect of the present case— from the issue of statutory construction to that of constitutional power — and lead to the conclusion that the district court was without jurisdiction to entertain Bartlett’s suit.
B.
There is no dispute that the judicial review provisions of the Medicare Act, taken on their face, explicitly deny to any and all courts jurisdiction to entertain Bartlett’s claim. The statute’s prohibitions of judicial review are flat, inflexible, and without even a trace of any exception for constitutional challenges to the denial of a claim. Sovereign immunity, as will be shown, pp. 724-29, infra, routinely bars suit on constitutional grounds even though Congress does not mention such grounds. Congress need not make explicit an intention to bar constitutional challenges because sovereign immunity reverses the burden. It is up to the plaintiff suing the government to show that Congress has unmistakably consented to suit based upon the Constitution. Given the language of section 1395ff(b)(2), it is difficult to know how review of Bartlett’s claim could more clearly be barred.
Bartlett has found nothing — and I think the majority has found nothing — in the legislative history of section 1395ff that even hints at, much less unequivocally provides, any exception for or consent to constitutional challenges to the statute’s explicit requirement of a jurisdictional minimum. Bartlett is undoubtedly correct in pointing out that the legislative history suggests Congress restricted Medicare benefit appeals to avoid overloading the courts with “trivial matters.” See Bowen v. Michigan Academy of Family Physicians, — U.S. -, 106 S.Ct. 2133, 2138 , 90 L.Ed.2d 623 (1986) (quoting Congressional Record). (The legislative history of the Medicare Act’s judicial review provisions, which addresses all the Act’s provisions collectively, is summarized in Michigan Academy, 106 S.Ct. at 2138-39 , 2141 n. 10, and United States v. Erika, Inc., 456 U.S. 201 , 208-10 & nn. 11-13, 102 S.Ct. 1650 , 1654-55 & nn. 11-13, 72 L.Ed.2d 12 (1982).) Recognition of this congressional purpose does not aid Bartlett. Neither in the statutory language nor in the legislative history did Congress single out constitutional challenges for special treatment. While, in one sense, even a $286 claim may not be a “trivial matter” when based on a first amendment challenge, Congress defined “trivial” in dollar terms rather than in terms of legal importance. 5
Bartlett stresses that constitutional challenges that fall short of the $1000 threshold are likely to be few and therefore fall outside of Congress’ purpose to avoid judicial “overload.” But there is no indication that Congress intended courts to carve out for review categories of claims under $1000 *714 that would not, of themselves, result in a great many cases. Instead, Congress placed together all claims, however different in nature, that involved less than $1000. Moreover, it is obvious that acceptance of Bartlett’s argument guarantees that the number of constitutional challenges will increase. Many Medicare claimants seeking less than $1000 could plead constitutional challenges to the statute in order to obtain subject matter jurisdiction. Those constitutional claims might often be too “insubstantial” to support jurisdiction, see Hagans v. Lavine, 415 U.S. 528, 536-38 , 94 S.Ct. 1372, 1378-79 , 39 L.Ed.2d 577 (1974), but to determine substantially courts would be forced to examine the claims — thus contributing to a judicial overload Congress sought to avoid with its $1000 limit. See Heckler v. Ringer, 466 U.S. 602, 627 , 104 S.Ct. 2013, 2028 , 80 L.Ed.2d 622 (1982) (Although in “the best of all worlds, immediate judicial access” for plaintiffs perhaps is desirable, Congress in sections 405(g) and 405(h) “struck a different balance” between individual hardship cases and the system-wide “potential for overly casual or premature judicial intervention.”).
The Supreme Court has recently analyzed an attempt at statutory construction designed to avoid a constitutional issue in a way that dictates the result here. Commodity Futures Trading Comm’n v. Schor, — U.S. -, 106 S.Ct. 3245, 3252-55 , 92 L.Ed.2d 675 (1986). Schor involved a claim that the jurisdictional statute of the Commodity Futures Trading Commission (“CFTC”) unconstitutionally granted the CFTC power to adjudicate common law counterclaims in reparation proceedings. In order to avoid this constitutional challenge, the Court of Appeals for the District of Columbia Circuit “read into the [statute’s] facially unqualified reference to counterclaim jurisdiction [, which speaks of ‘all counterclaims,’] a distinction between counterclaims arising under the [Commodities] Act or CFTC regulations and all other counterclaims.” Id. 106 S.Ct. at 3253. Similarly, to avoid the constitutional problem of non-reviewability, the majority here seeks to read into the Medicare Act’s “facially unqualified” bar on claims below $1000 a distinction between benefit claims involving a constitutional challenge and all other benefit claims.
This court in Schor found an exception in the statute because Congress had no “clearly expressed” or “explicit” intention to “give the CFTC constitutionally questionable jurisdiction.” 106 S.Ct. at 3251. That is the technique today’s majority uses. But the Supreme Court in Schor held that the statute meant what it said and emphatically rejected what it called the lower court’s “manufacture.” I quote Schor at some length because it seems to me dispositive of the question of statutory construction here.
The Court of Appeals was correct in its understanding that “[federal statutes are to be so construed as to avoid serious doubt of their constitutionality.” Where such “serious doubts” arise, a court should determine whether a construction of the statute is “fairly possible” by which the constitutional question can be avoided. It is equally true, however, that this canon of construction does not give a court the prerogative to ignore the legislative will in order to avoid constitutional adjudication; “ ‘[although this court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute ...’ or judicially rewriting it.”
... While the court’s reading permitted it to avoid a potential Article III problem, it did so only by doing violence to the [statute], for its distinction cannot fairly be drawn from the language or history of the [statute], nor reconciled with the congressional purposes motivating the creation of the [CFTC’s jurisdiction].
... The canon of construction that requires courts to avoid unnecessary constitutional adjudication did not empower the Court of Appeals to manufacture a restriction on the CFTC’s jurisdiction that was nowhere contemplated by Congress and to reject plain evidence of con *715 gressional intent because that intent was not specifically embodied in a statutory mandate.
Id. at 3252, 3253, 3255 (citations omitted). The Court therefore reached and decided the constitutional issue. The majority here, like the court of appeals in Schor , has rewritten a clear statute to manufacture an exception that is contradicted by the face of the Medicare statute and is nowhere contemplated in the legislative history. This circuit does again what Schor holds it may not.
All of these arguments — about Congress' rationale for enacting the statute, and whether a court may cut back plain statutory language because the rationale Congress expressed is not as broad as the statutory text — are, in any event, largely irrelevant. Not only is the text plain and supported by the legislative history but there is, as to claims like Bartlett’s, not only no unequivocal waiver of sovereign immunity but no faintest hint of such a waiver.
C.
The statutory analysis set out above is confirmed by a comparison of two Supreme Court decisions.
Johnson v. Robison, 415 U.S. 361 , 94 S.Ct. 1160 , 39 L.Ed.2d 389 (1974), involved a constitutional challenge by a conscientious objector, who had performed required alternative service, to a provision of the Veterans’ Readjustment Benefits Act that made him ineligible for educational benefits. When the Administrator of Veterans’ Affairs applied the statute to deny his claim, Robison brought suit in a federal district court, invoking various bases for jurisdiction, including federal question jurisdiction under 28 U.S.C. § 1331 . The government contended that no judicial review could be had because 38 U.S.C. § 211 (a) provided: “[T]he decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits ... shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision____” The Supreme Court noted that a construction of the statute barring federal courts from deciding the constitutionality of the benefit legislation would “raise serious questions concerning the constitutionality of § 211(a),” so that the Court should determine whether a construction that would avoid that constitutional issue was “fairly possible.” 415 U.S. at 366-67, 94 S.Ct. at 1165.
The Robison Court thought section 211(a) did not explicitly bar consideration of constitutional claims because what the section made nonreviewable were decisions of the Administrator under any law administered by the Veterans’ Administration. Thus, the section applied to decisions made in the administration of a statute, but appellant Robison was challenging not a decision of that sort but rather a decision made by Congress. The questions of law presented arose under the Constitution, not under the statute. This construction was confirmed by administrative practice, since the agency did not consider constitutional challenges, and by legislative history, since Congress had shown no intent to bar judicial review of constitutional attacks upon the statute but had been concerned with avoiding burdening the courts and uniformity of decisions. The Court said that these problems did not arise in cases involving the constitutional validity of the statute. Thus, neither the statutory text nor the legislative history provided the necessary “clear and convincing” evidence of congressional intent to prevent access to judicial review in a case like Robison .
Robison’s effect on Bartlett’s claim is not entirely clear. The statute in the present case, 42 U.S.C. § 1395ff(b), bars “judicial review of the Secretary’s final decision” as to the amount of benefits, including a decision that the amount should be zero, where the amount claimed is less than $1000. This statute does not contain the language about decisions “under” the statute that the Court found important in Robison as indicating a congressional desire to insulate only administrative decisions, not congressional decisions, from review. *716 Here all of the Secretary’s “final decision^]” are so insulated, and the Secretary has decided that the statute precludes reimbursement to Bartlett. On the other hand, here, as in Robison , it can be said that the decision challenged is really not the Secretary’s but Congress’ and the question of law arises under the Constitution; the Secretary had no authority to pass on the constitutional question; and the legislative history does not show an intent specifically to prohibit review of a constitutional challenge to the statute. If Robison stood alone, it might, perhaps, allow a finding of jurisdiction in the present case.
But Robison does not stand alone. It was significantly modified by Weinberger v. Salfi, 422 U.S. 749 , 95 S.Ct. 2457 , 45 L.Ed.2d 522 (1975). In that case, a widow challenged the duration-of-relationship provisions of the Social Security Act under which the Secretary of the Department of Health, Education, and Welfare had denied her benefits. The Court rejected the argument accepted in Robison , saying that though the widow’s claim arose under the Constitution, the claim also arose under the Social Security Act, and section 405(h) therefore applied. Moreover, unlike section 211(a), involved in Robison , section 405(h) is not limited to decisions of the Secretary but extends to any “action” seeking “to recover on any Social Security claim,” whether judicial review is sought because of discretionary decisions of the Secretary or the Secretary’s nondiscretionary application of statutory provisions alleged to be unconstitutional. Section 405(g) provides district court review of any final decision of the Secretary and, the Court held, a denial of benefits on the basis of a statute which is alleged to be unconstitutional is nonetheless a decision of the Secretary for review purposes. Salfi, 422 U.S. at 764 , 95 S.Ct. at 2466 .
Salfi thus modifies Robison in ways that undercut the jurisdiction asserted by Bartlett. Salfi teaches that Bartlett’s claim, though it arises under the Constitution, also arises under the Medicare Act so that the limits of section 405(h) and section 1395ff(b) apply. The decision challenged, according to Salfi , is that of the Secretary, even though the Secretary is applying a provision enacted by Congress. Salfi cuts off the escape through statutory construction employed by Robison and, therefore, means that Bartlett must proceed only on the jurisdictional basis provided by section 1395ff(b). It is true that Salfi also distinguished Robison on the additional ground that the latter case “was expressly based, at least in part, on the fact that if § 211(a) reached constitutional challenges to statutory limitations, then absolutely no judicial consideration of the issue would be available. Not only would such a restriction have been extraordinary, such that ‘clear and convincing’ evidence would be required before we would ascribe such intent to Congress, ... but it would have raised a serious constitutional question of the validity of the statute as so construed.” 422 U.S. at 762 , 95 S.Ct. at 2465 . 6
*717 The upshot is that Salfi bars judicial review of Bartlett’s claim 7 unless it can be said that Salfi , by distinguishing Robison as based, in part, upon the remark about constitutional difficulties, thereby read, and ratified, Robison as changing the law of sovereign immunity in constitutional challenges to benefits legislation. That would mean that the entire doctrine of sovereign immunity is cast into doubt whenever an action against the government is based on a constitutional ground. This subject is taken up at pp. 728-29, infra. It will be seen, in any event, that Salfi recognizes a distinction that strongly suggests the continuing vitality of sovereign immunity in this field. See pp. 722-23, infra.
D.
The majority finds relevant the general “presumption that Congress intends judicial review of administrative action,” Michigan Academy, 106 S.Ct. at 2135 . But that presumption has no place in this litigation. In the first place, the presumption of review appears to be rooted in “the ordinar[ ]y presum[ption] that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command.” Michigan Academy, 106 S.Ct. at 2141 . See, e.g., id. at 2136 (quoting Chief Justice Marshall and the legislative history of the Administrative Procedure Act on congressional use of the courts to control the Executive); Leedom v. Kyne, 358 U.S. 184, 190 , 79 S.Ct. 180, 184 , 3 L.Ed.2d 210 (1958) (Court “cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers”). The presumption so explained is inapplicable in this case, where we are asked not to exercise judicial review of illegal executive action as a delegate of Congress, but to review legislative action of Congress itself. Unlike the Executive, Congress, as discussed below, has both a power to regulate the jurisdiction of federal courts and a power to withhold consent to suit in any court against the United States, powers which militate against a presumption favoring judicial review. The Supreme Court has expressly recognized that the elements composing the integrated structure of jurisdictional limitations governing Bartlett’s claim are a limited consent to suit, i.e., a limited waiver of sovereign immunity. Bowen v. City of New York, — U.S. -, 106 S.Ct. 2022, 2029 , 90 L.Ed.2d 462 (1986) (constitutional and statutory challenge to Social Security procedures) (“We have no difficulty agreeing with [the] statement” that the 60-day statute of limitations in 42 U.S.C. § 405 (g) “is a condition on the waiver of sovereign immunity and thus must be strictly construed” (emphasis added)). With any sovereign consent to suit, the proper presumption is that legislative “consent, since it is a relinquishment of a sovereign immunity, must be strictly interpreted,” United *718 States v. Sherwood, 312 U.S. 584, 590 , 61 S.Ct. 767, 771 , 85 L.Ed. 1058 (1941) (emphasis added), and “cannot be implied but must be unequivocally expressed,” United States v. King, 395 U.S. 1, 4 , 89 S.Ct. 1501, 1503 , 23 L.Ed.2d 52 (1969), (emphasis added). Since, therefore, the Medicare jurisdictional provisions at issue here are a limited waiver of sovereign immunity, interpretation of those statutes must begin with an initial presumption against jurisdiction over Bartlett's claim.
Even if otherwise there could be any doubt on this point, the Supreme Court has provided specific guidance on the relation between sovereign immunity and presumptions like that favoring judicial review. In Lehman v. Nakshian, 453 U.S. 156 , 101 S.Ct. 2698 , 69 L.Ed.2d 548 (1981), plaintiff claimed that it would be unconstitutional to deprive him of a jury trial in his suit against the United States under the Age Discrimination in Employment Act. The Court viewed the question as whether the government had conditioned the statute’s waiver of immunity from suit on the absence of a jury trial. Plaintiff countered “that the strong presumption against the waiver of sovereign immunity has no relevance to the question of a [constitutional] right to trial by jury.” 453 U.S. at 162 n. 9, 101 S.Ct. at 2702 n. 9. The Court responded:
[I]t is clear that the doctrine of sovereign immunity and its attendant presumptions must inform the Court’s decision in this case. The reason that the. Seventh Amendment presumption in favor of jury trials does not apply in actions at law against the United States is that the United States is immune from suit, and the Seventh Amendment right to a jury trial, therefore, never existed with respect to a suit against the United States. Since there is no generally applicable jury trial right that attaches when the United States consents to suit, the accepted principles of sovereign immunity require that a jury trial right be clearly provided in the legislation creating the cause of action.
Id.
If the Supreme Court found that the seventh amendment’s constitutional “presumption” did not affect its reading of a waiver of immunity, surely the presumption of judicial review does not affect the assertion of sovereign immunity. Yet the majority concludes that the mow-constitutional presumption favoring review of agency action defeats Congress’ reservation of sovereign immunity from Bartlett’s claim. Even if that presumption were relevant to congressional action (which it probably is not), and even if that presumption were a constitutional doctrine (which it certainly is not), the majority’s conclusion would remain an unsupportable contradiction of the general principles of the law of sovereign immunity and the Supreme Court’s clear direction in Nakshian .
Finally, even if all these difficulties could be overcome, the presumption favoring review of administrative action is defeated if Congress’ specific intent to the contrary is evident in the statutory language. Block v. Community Nutrition Institute, 467 U.S. 340, 349 , 104 S.Ct. 2450, 2455 , 81 L.Ed.2d 270 (1984). As has been shown, Congress’ intent to bar all judicial review of Medicare Part A claims for less than $1000 could hardly be more clearly stated.
II.
A.
This case presents difficulties only because the Supreme Court appears to have said inconsistent things about benefits legislation that withholds judicial review of claims such as Bartlett’s. On the one hand, the Court in Bowen v. City of New York, in which a constitutional claim was made, characterized statutory provisions indistinguishable from the provisions involved here as a waiver of sovereign immunity. That necessarily means that the United States could not have been sued if there had been no waiver. In cases such as United States v. Mottaz, — U.S. -, 106 S.Ct. 2224, 2229 , 90 L.Ed.2d 841 (1986), moreover, the Court continues to adhere to the rule, even where a constitutional claim is asserted, that “[w]hen the United States consents to be sued, the terms of its waiver *719 of sovereign immunity define the extent of the court’s jurisdiction.” If we take these statements seriously, as we must, and if there were nothing to the contrary in the case law, then it would be obvious that the district court had no jurisdiction to entertain Bartlett’s suit. 8 On the other hand, this clear rule may have been cast into doubt by the Court’s remark in Robison that a construction of a statute that “bars federal courts from deciding the constitutionality of veterans’ benefits legislation ... would, of course, raise serious questions concerning the constitutionality” of the statute. 415 U.S. at 866, 94 S.Ct. at 165. Though the government drew the doctrine of sovereign immunity to the Court’s attention, Robison said nothing on the subject and did not mention the cases cited on the point.
This situation leaves lower courts in a quandry. Robison’s statement about questions of constitutionality must be taken as seriously intended, and yet it is not easy to accept the result of doing so. Should Robison’s statement be taken as a silent overturning of the doctrine of sovereign immunity for all constitutional challenges to benefits legislation? If so, much more would seem logically to follow. Benefits claims constitute the category of cases in which sovereign immunity is most readily upheld. See infra, pp. 720-24. Should Robison , therefore, be read to eliminate sovereign immunity for all constitutional claims against both federal and state legislation and executive action? These conclusions, though startling, would seem to follow logically. Lower courts, however, do not usually infer silent overruling when the Supreme Court gives no explicit indication that it has addressed an issue and that such overruling is intended. I think it safer for lower court judges to continue to respect established doctrine, particularly when that doctrine is as old and solidly rooted as sovereign immunity. In addition, the cases cited by the Robison Court for its aside about constitutionality do not address at all the subject of sovereign immunity. Under these circumstances, the implication of a momentous yet tacit change in the law seems much too tenuous to be acted upon.
To substantiate the assertion that a bar to a constitutional challenge to benefits legislation would “raise serious questions concerning the constitutionality” of that bar, the Robison opinion appended a footnote consisting of case citations intended, apparently, to suggest the nature of the constitutional issue. That footnote, in its entirety, said simply:
Compare Ex parte McCardle, 7 Wall. 506 [ 19 L.Ed. 264 ] (1869); Sheldon v. Sill, 8 How. 441 [ 12 L.Ed. 1147 ] (1850), with Martin v. Hunter’s Lessee, 1 Wheat. 304 [ 4 L.Ed. 97 ] (1816); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 [ 56 S.Ct. 720, 740 , 80 L.Ed. 1033 ] (1936) (Brandeis, J., concurring). See Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953) [reprinted in P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 330-60 (2d ed. 1973) [hereafter Hart & Wechsler ]].
415 U.S. at 366 n. 8, 94 S.Ct. at 1165 n. 8.
Robison , it is to be stressed, merely stated that there was a serious question of constitutionality. It did not purport to answer the question. In the light of other Supreme Court decisions, I think it may also be said, with respect, that Robison raised the question in a context in which it does not belong. The citations in the Robison footnote have to do with the much-debated question of the scope of Congress’ power to remove the jurisdiction of inferior federal courts and of the Supreme Court to hear constitutional issues in any and all contexts. That is a far broader and more profound issue than any presented here. Unless Robison is to be taken as doing so, the Supreme Court had never suggested, so far as I am aware, that there might be a constitutional difficulty in a statute that merely invoked sovereign immunity with *720 respect to suits challenging the constitutionality of a statutory denial of government benefits.
The cases cited in Robison’s footnote are of a different nature altogether. Sheldon v. Sill involved a suit on a bond and a mortgage. The Court upheld congressional removal of diversity jurisdiction, a jurisdiction authorized in article III of the Constitution, in cases where there would have been no diversity of citizenship prior to an assignment of such documents. The Court stated that the power to remove the jurisdiction of the lower federal courts arises by necessary implication from the fact that Congress created those courts, although, of course, it was under no constitutional duty to do so: “[Hjaving a right to prescribe, Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies [listed in article III of the Constitution]. Courts created by statute can have no jurisdiction but such as the statute confers.” 49 U.S. (8 How.) 441, 448 , 12 L.Ed. 1147 (1850). Ex parte McCardle held that Congress’ repeal of a statute giving appellate jurisdiction to the Supreme Court in cases involving writs of habeas corpus effectively ended the ability of the Court to decide such a case then pending before it. The meaning of McCardle is still debated: there may or may not be a suggestion in the McCardle opinion itself that the Court did not concede an unlimited power in Congress to remove its appellate jurisdiction over entire categories of constitutional issues. See 74 U.S. (7 Wall.) 506, 515 , 19 L.Ed. 264 (1869). In Hunter’s Lessee , the Court asserted jurisdiction to review judgments of the highest state courts where an issue of federal law (there a treaty of the United States) was involved. The Court reasoned that Congress was under a constitutional duty to vest the entire judicial power specified in article III somewhere in the federal court system, which would mean that no class of cases may be removed entirely from federal jurisdiction. See 14 U.S. (1 Wheat.) 304, 330-33 , 4 L.Ed. 97 (1816). This suggestion has not been accepted in later cases. St. Joseph Stock Yards affirmed a three-judge district court’s judgment sustaining a rate order of the Secretary of Agriculture under the Packers and Stockyards Act. A question was raised as to the weight courts should give the Secretary’s findings. Justice Brandéis’ concurring opinion stated that a person asserting a right is entitled to “the independent judgment of a court on the ultimate question of constitutionality.” 298 U.S. 38, 84 , 56 S.Ct. 720, 740 , 80 L.Ed. 1033 (1936). The Hart Dialectic is an erudite and sophisticated exploration of the complexities of these issues.
These cases, which seem to look in different directions, raise the issue of Congress’ power, and in particular its power under article III, section 2, clause 2 of the Constitution to make exceptions to the Supreme Court’s jurisdiction, to remove constitutional issues in cases of all descriptions from the control of the federal courts. Bartlett’s suit does not provide an appropriate occasion to enter upon an investigation of that hotly debated and surpassingly important question. It is nothing less than the question of the ultimate control of constitutional issues as between Congress and the Supreme Court. We need not, and, therefore, should not, address that issue, much less pretend to resolve it, because this case presents a problem that has long been recognized as being of a different order.
The cases cited in the Robison footnote were enforcement actions. That is, they involved either attempts by private parties to enforce legal obligations against other private parties (Sheldon v. Sill and Martin v. Hunter’s Lessee) or attempts by government to enforce law against private parties (Ex parte McCardle and St. Joseph Stock Yards Co. v. United States). Whatever may ultimately be decided about Congress’ power to remove jurisdiction over constitutional issues in such coercive enforcement actions, Bartlett presents a claim that has always been treated as different in kind, one which may be barred, even as to constitutional issues, by the doctrine of sovereign immunity. By contrast, the doctrine of sovereign immunity has no application whatever to a government enforcement action and has never been thought to have any.
*721 Bartlett is seeking a benefit from the government, not resisting a government or private enforcement action. There is a line of Supreme Court decisions that permits denial of jurisdiction in cases of the former type, whatever the rule may be as to those of the latter variety. Drawing upon case law, Professor Hart’s Dialectic, cited in the Robison footnote, concluded that congressional withdrawal of jurisdiction is least troublesome and questionable in “the cases of plaintiffs complaining about governmental decisions which do not involve the direct coercion of private persons.” Hart & Wechsler at 346. The group of cases he indicated
includes problems with respect to plaintiffs who are neither (a) trying to avoid becoming defendants, or (b) complaining about a governmental decision concerning a judicially enforceable duty of another private person, or (c) complaining about extrajudicial governmental coercion of themselves. For example, a plaintiff seeking review of a government contracting officer’s decision which he had agreed in the contract should be final. United States v. Moorman, 338 U.S. 457 [ 70 S.Ct. 288 , 94 L.Ed. 256 ] (1950). Or a plaintiff seeking some statutory benefit from the government.
Hart & Wechsler at 346-47 (emphasis added). This last category is the one into which Bartlett falls. Her claim to Medicare Part A benefits addresses neither present nor future governmental coercion against her nor governmental interference with the legal duty of a private person running in her favor. It is significant that Professor Hart coupled the category that encompasses benefit claims with the category represented by Moorman, for the Supreme Court there held that the plaintiff did not have access to the courts.
Professor Davis has come to a similar conclusion: “Upholding unreviewability of questions of law, jurisdiction, and procedure is easiest in the batch of cases involving denial of government bounties or benefits ____” 4 K. Davis, Administrative Law Treatise § 28.18, at 98 (1st ed. 1958). Davis goes on to say that this rationale is unhelpful in perhaps two-thirds of the cases denying judicial review but, judging by the cases he cited, evidently meant that review could be denied in more categories of cases than those involving benefit claims. He then made a distinction very like Professor Hart’s:
Just as one may readily subscribe to the idea that review may be denied of the award of government gratuities or bounties, perhaps a court can more easily deny review of a withholding of administrative assistance from those who are beneficiaries of government programs than it can deny review of administrative enforcement of obligations upon those who are subjected to the disadvantage of government programs.
Id. § 28.19, at 103. See also id. at 104.
Professors Hart’s and Davis’s categorization accurately reflect the line drawn by the Supreme Court for many years. It has always been true that the United States could not be sued without its consent. This has nothing to do with the question of congressional power to remove the jurisdiction of federal courts when enforcement powers are brought to bear. Sovereign immunity has always been accepted by the Supreme Court. See, for example, California v. Arizona, 440 U.S. 59, 63, 65 , 99 S.Ct. 919, 922, 923 , 59 L.Ed.2d 144 (1979), involving California’s suit to quiet title against Arizona and the United States (“It is clear, of course, that Congress could refuse to waive the Nation’s sovereign immunity in all cases or only in some cases but in all courts. Either action would bind this court even in the exercise of its original jurisdiction,” a jurisdiction given by the Constitution and not subject to the congressional Regulations and Exceptions power.). 9
*722 The leading Supreme Court decision involving immunity from suit for a statutory benefit is Lynch v. United States, 292 U.S. 571 , 54 S.Ct. 840 , 78 L.Ed.2d 1434 (1934). In each of the two cases there involved, the plaintiff was the beneficiary under an insurance policy issued during World War I pursuant to the War Risk Insurance Act. A later statute abrogated the outstanding insurance contracts. Plaintiffs claimed that the latter statute deprived them of property without due process of law in violation of the fifth amendment. Justice Brandéis, writing for a unanimous Court, agreed that the contracts were property protected by the due process clause of the fifth amendment and that Congress lacked power to abrogate the obligations of the United States. Nevertheless, “[t]he rule that the United States may not be sued without its consent is all embracing.” Id. at 581 , 54 S.Ct. at 844 .
Although consent to sue was thus given when the policy issued, Congress retained power to withdraw the consent at any time____ The sovereign’s immunity from suit exists whatever the character of the proceeding or the source of the right sought to be enforced. It applies alike to causes of action arising under acts of Congress ... and to those arising from some violation of rights conferred upon the citizen by the Constitution, Schillinger v. United States, 155 U.S. 163, 166, 168 [ 15 S.Ct. 85, 86 , 39 L.Ed. 108 (1894)] ...
... When the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through the courts, United States v. Babcock, 250 U.S. 328, 331 [ 39 S.Ct. 464, 465 , 63 L.Ed. 1011 (1919) ]. It may limit the individual to administrative remedies. Tutun v. United States, 270 U.S. 568, 576 [ 46 S.Ct. 425, 426 , 70 L.Ed. 738 (1926)].
292 U.S. at 581-82 , 54 S.Ct. at 844 (emphasis added). Though the Court held that Congress had intended to abrogate the contracts but not to withdraw the remedy of suit, Justice Brandéis’ analysis of its power to do so even in the face of a constitutional claim has been repeatedly relied upon by courts since. 10 As the Supreme Court said in Maricopa County v. Valley National Bank of Phoenix, 318 U.S. 357, 362 , 63 S.Ct. 587, 589 , 87 L.Ed. 834 (1943), “the power to withdraw the privilege of suing the United States or its instrumentalities knows no limitations. Lynch v. United States, 292 U.S. 571, 581-82 , 54 S.Ct. 840, 844 , and cases cited.” 11
The Supreme Court has arguably not supplied an altogether satisfactory ratio *723 nale for the ability of the United States to withhold its consent to suit on a statutory benefit. The doctrine has its origins in English legal history, perhaps, it has been said, in a misunderstanding of that history. Today, it may possibly rest in part upon the practical necessities of the administrative-welfare state. Salfi made clear that, for reasons of administrative necessity, constitutional rules apply differently, or may not apply at all, to benefit programs. The widow there contended that the duration-of-relationship requirement for Social Security benefits was intended to ensure that “benefits should be awarded only on the basis of genuine marital relationships.” 422 U.S. at 784 , 95 S.Ct. at 2476 . She argued that the due process clause of the fifth amendment required an individualized determination of the genuineness of the relationship and prohibited a conclusive presumption that marriages of less than six months’ duration before the death of a spouse had been entered into for the purpose of obtaining benefits. The Court, however, upheld the legislative presumption:
The Constitution does not preclude such policy choices as a price for conducting programs for the distribution of social insurance benefits. Cf. Geduldig v. Aiello, 417 U.S. [484], at 496 [ 94 S.Ct. 2485, 2491 , 41 L.Ed.2d 256 (1974)]. Unlike criminal prosecutions, or the custody proceedings at issue in Stanley v. Illinois, [ 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972)], such programs do not involve affirmative Government action which seriously curtails important liberties cognizable under the Constitution.
422 U.S. at 785 , 95 S.Ct. at 2476 . It is, of course, utterly clear that, when government takes affirmative action against an individual, the kind of individualized determination denied Salfi would be required. The distinction the Salfi Court drew between affirmative government action and benefits under social insurance programs parallels, indeed seems identical to, the distinction the cases and commentators have made between government enforcement actions and suits for benefits. 12
Much the same distinction determined the result in Flemming v. Nestor, 363 U.S. 603 , 80 S.Ct. 1367 , 4 L.Ed.2d 1435 (1960). Nestor, a claimant for Social Security old-age benefits, had been deported just after becoming eligible for those benefits for having previously been, as an alien in this country, a member of the Communist Party. The Court held that the statute’s classification of such deportees as ineligible for benefits was sufficiently rational to pass due process scrutiny. More important for present purposes, Nestor’s “most insistently pressed” constitutional objections to the termination of his benefits rested upon article I, § 9, cl. 3, article III, § 2, cl. 3, and the sixth amendment. 363 U.S. at 612-13 , 80 S.Ct. at 1373-74 . He complained, that is, that the statute punished him without a judicial trial, imposed punishment by legislative act and so constituted a bill of attainder, and punished for past conduct not unlawful when engaged in and so was an ex post facto law. These were substantive constitutional claims, like Bartlett’s, not due process challenges to the rationality of classifications. Nevertheless, the Supreme *724 Court refused to reach the substance of those claims because Nestor sought a governmental benefit, the denial of which could not be characterized as “punishment.” Id. at 616-21 , 80 S.Ct. at 1375-78 .
The fact that constitutional challenges were deflected in Salfi and Nestor because they were made in claiming government benefits, rather than in defending enforcement actions, creates a fairly strong implication that judicial review of a constitutionally-based benefit claim may be denied by Congress. The analogies are close, and perhaps sufficient, but I need not rely entirely upon them because the cases to be discussed next demonstrate that the same distinction supports sovereign immunity as to benefit claims like Bartlett’s.
B.
The pivot of the majority’s argument appears to be the proposition that, though the Supreme Court has enunciated the distinction between benefit claims and enforcement actions in cases such as Lynch and Maricopa County , the Court has never barred a constitutional challenge to a statute on grounds of sovereign immunity. This is said to be so at least where the bar would leave no judicial forum, federal or state, available to hear and decide the constitutional issue. This proposition, in either its broad or narrow version, is easily shown to be false.
On numerous occasions, a suit claiming governmental funds of a state or the United States, whose immunities from suit stem from different sources but for this purpose “present the same legal issues,” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 708 , 69 S.Ct. 1457, 1470 , 93 L.Ed. 1628 (1949) (Frankfurter, J., dissenting), have been dismissed by the Supreme Court because the sovereign has failed to waive its immunity even though the suit incorporated a constitutional challenge and even though the result was that no judicial forum was available. Since the majority attempts to explain away the cases supporting this proposition with arguments either mistaken or immaterial, it is necessary to discuss some representative decisions.
In United States v. Mottaz, — U.S. -, 106 S.Ct. 2224 , 90 L.Ed.2d 841 (1986), an American Indian claimed that a sale of alloted Indian lands by the United States was illegal, an unconstitutional taking and a violation of due process. Id. 106 S.Ct. at 2227. The Court held that under one jurisdictional statute, the General Allotment Act, 25 U.S.C. § 345 (1982), the United States had not waived its sovereign immunity from claims such as plaintiff’s, 106 S.Ct. at 2232, while under the other pertinent jurisdictional statute, the Quiet Title Act, 28 U.S.C. §§ 1346 (f), 2409a (1982) (“QTA”), Congress’ waiver of immunity was conditioned on a statute of limitations that barred plaintiff’s claims, 106 S.Ct. at 2230. Thus, although “[fjederal law rightly provides Indians with a range of special protections,” sovereign immunity barred plaintiff's constitutional claims. Id. at 2234. Indeed, in Block v. North Dakota, 461 U.S. 273 , 103 S.Ct. 1811 , 75 L.Ed.2d 840 (1983), when a state bringing a quiet-title action against the United States claimed that the QTA’s statute of limitations, although a reservation of sovereign immunity, was unconstitutional as applied to lands vested by the Constitution in the states themselves, id. at 291 , 103 S.Ct. at 1822 , the Court stated that “[a] constitutional claim can become time-barred just as any other claim can,” id. at 292 , 103 S.Ct. at 1822 . The Court held further that the QTA provided the sole jurisdictional basis to establish title to land agáinst the United States. Id. at 286 , 103 S.Ct. at 1819 . Thus, despite its constitutional challenge, North Dakota was left without a judicial forum and with merely the “hope of inducing the United States to file its own quiet title suit,” id. at 292 , 103 S.Ct. at 1822 .
Lehman v. Nakshian, 453 U.S. 156 , 101 S.Ct. 2698 , 69 L.Ed.2d 548 (1981), rejected plaintiff’s claim to a jury trial in a suit against the federal government under the Age Discrimination in Employment Act. Plaintiff's claim rested on the right to jury trial set out in the seventh amendment. The Court relied on the long-settled proposition that in the absence of congressional consent sovereign immunity suspends an *725 individual’s constitutional right to jury trial. 453 U.S. at 160 , 101 S.Ct. at 2701 . There was, of course, no other judicial forum available in which the plaintiff could obtain the jury trial provided by the seventh amendment.
Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371 , 66 S.Ct. 219 , 90 L.Ed. 140 (1945), involved a claim by a contractor that the Renegotiation Act, a statute permitting the Secretary of the Navy to withhold payment to war contractors who made “excessive profits,” was unconstitutional. Plaintiff contractor brought suit in district court to enjoin the government’s withholding of payments owed to it, alleging that the effects of the challenged statutory scheme made it “impossible” for it to pursue the remedy provided by the Act in the Tax Court. 326 U.S. at 372 , 66 S.Ct. at 220 . The Supreme Court held that since “this is an indirect effort to collect a debt allegedly owed by the government in a proceeding to which the government has not consented,” jurisdiction did not lie “even though the Renegotiation Act under which the Secretary proposed to act might be held unconstitutional.” Id. at 375 , 66 S.Ct. at 221 . The Court’s holding was not affected by plaintiff’s argument that it was “impossible” for it to bring its challenge elsewhere.
In Morrison v. Work, 266 U.S. 481 , 45 S.Ct. 149 , 69 L.Ed. 394 (1925), an American Indian challenged the government’s management of lands ceded to the United States by his Indian tribe, claiming in part that subsequent congressional legislation governing the lands’ administration had “deprivfed the Indians] of property in violation of the Constitution.” Id. at 484 , 45 S.Ct. at 151 . Justice Brandéis, for a unanimous Court, stated that the constitutional claims were barred, “as Congress has not consented that it be sued.” Id. at 486 , 45 S.Ct. at 151 . The Court was silent on whether any other forum was open to the plaintiff, but clearly the United States’ immunity would bar suit in a state court. It should be noted that this opinion was by Justice Brandéis, who, the majority professes to believe, did not really mean the strong and unequivocal rule of sovereign immunity he laid down in Lynch.
Murray v. Wilson Distilling Co., 213 U.S. 151 , 29 S.Ct. 458 , 53 L.Ed. 742 (1909), concerned a dispensary commission established by South Carolina statute for the purchase and resale of distilled liquors. Creditors of the commission sued in federal court, claiming that subsequent state legislation winding up the business of the commission was a violation of the federal Constitution’s contracts, due process, and equal protection clauses, id. at 167 , 29 S.Ct. at 462 , insofar as it limited the creditors’ claims against the commission. The Supreme Court held that suit was barred by the eleventh amendment and stated:
The absence in the winding up act of a provision conferring authority to review in the ordinary courts of justice the action of the commission concerning claims, instead of supporting the contention that the State had abandoned all property right in the funds placed in the hands of the commission, tends to a contrary conclusion, since it at once suggests the evident purpose of the State to confine the determination of the amount of its liability to claimants, to the officers or agents chosen by the State for that purpose. And it is elementary that even if a State has consented to be sued in its own courts by one of its creditors, a right would not exist in such creditor to sue the State in a court of the United States. The situation, therefore, was not changed as a result of the subsequent act of February 24,1908, giving the creditors of the State, whose claims might be adversely acted upon by the commission, the right to a review in the Supreme Court of the State.
Id. at 172-73 , 29 S.Ct. at 465 (emphasis added) (citations omitted). This discussion, and especially the emphasized language, clearly shows that the United States Supreme Court was wholly untroubled by the prospect that sovereign immunity may bar a constitutional claim from review in any judicial forum whatsoever. This conclusion is buttressed by the settled rule in eleventh amendment cases that consideration of a state’s waiver of sovereign immunity in its own courts and of its waiver in federal *726 courts must be wholly independent of each other. E.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234 , 105 S.Ct. 3142, 3147 , 87 L.Ed.2d 171 (1985). That state sovereign immunity derives from the eleventh amendment does not distinguish these cases from Bartlett’s since federal sovereign immunity also has a constitutional base, the third article of the Constitution. See supra note 9.
In Schillinger v. United States, 155 U.S. 163 , 15 S.Ct. 85 , 39 L.Ed. 108 (1894), cited by Justice Brandéis in the Lynch decision, plaintiff sued the United States in the Court of Claims, alleging that the government’s wrongful use of plaintiff’s patent, as a taking of property, was a claim “founded upon the Constitution of the United States” under the Tucker Act. The Supreme Court, stating that “Congress has an absolute discretion to specify the cases and contingencies in which the liability of the Government is submitted to the courts for judicial determination,” id. at 166, 15 S.Ct. at 86 , construed plaintiff’s claim as a tort and held that as such it fell outside the consent given in the Tucker Act and was barred, even if it was founded upon the Constitution. Id. at 168 , 15 S.Ct. at 86 .
In Pennoyer v. McConnaughy, 140 U.S. 1 , 11 S.Ct. 699 , 35 L.Ed. 363 (1891), a purchaser of land from the state of Oregon sued state officials, challenging subsequent state legislation cancelling his sale agreement as a violation of the contracts clause of the federal Constitution. The Court found the suit not to be against the state and permitted plaintiff to seek injunctive relief against the defendants, since plaintiff sought simply to compel them not to act in accord with the allegedly unconstitutional legislation, and did not seek any payment of money or other affirmative relief. Id. at 18-19 , 11 S.Ct. at 704 . If the suit had been of the latter type, it could not have been maintained, for, as the Court said, “[t]he immunity of a State from suit is absolute and unqualified” under the eleventh amendment, “even though the sole object of such suit be to bring the State within the operation of the constitutional [impairment of contracts] provision.” Id. at 9 , 11 S.Ct. at 701 .
Finally, among the many nineteenth-century cases that addressed constitutional challenges to failure to pay state bondholders are Louisiana ex rel. New York Guaranty & Indemnity Co. v. Steele, 134 U.S. 230 , 10 S.Ct. 511 , 33 L.Ed. 891 (1890), and the leading case on this point, Louisiana v. Jumel, 107 U.S. (17 Otto) 711, 2 S.Ct. 128 , 27 L.Ed. 448 (1882). In Steele , the Supreme Court, on a writ of error from the Louisiana Supreme Court, held that sovereign immunity barred a suit in state court alleging that state repealing legislation was an unconstitutional impairment of contract. Since, as Jumel indicates, Louisiana also had not waived its eleventh amendment immunity, no judicial forum was available for Steele to bring his constitutional challenge. In Jumel , although the Court found that the Louisiana bond contracts at issue “unmistakably ... would be protected by the Constitution of the United States against impairment,” 107 U.S. at 720 , 2 S.Ct. at 135 , the Court proceeded to state:
The bonds and coupons which the parties to these suits hold have not been reduced to judgment, and there is no way in which the State, in its capacity as an organized political community, can be brought before any court of the State, or of the United States, to answer a suit in the name of these holders to obtain such a judgment. It was expressly decided by the Supreme Court of the State that such a suit could not be brought in the State courts, and under the Eleventh Amendment of the Constitution no State can be sued in the courts of the United States by a citizen of another State. Neither was there when the bonds were issued, nor is there now, any statute or judicial decision giving the bondholders a remedy in the State courts or elsewhere, either by mandamus or injunction, against the State in its political capacity, to compel it to do what it has agreed should be done, but which it refuses to do.
Id. (emphasis added) (citation omitted). See generally Larson v. Domestic & Foreign Commerce Corp., 337 U.S. at 710 n. 2, *727 713-14, 69 S.Ct. at 1471 n. 2, 1473 (Frankfurter, J., dissenting) (collecting authorities).
In the Larson case, which the majority asserts overruled sub silentio the Morrison v. Work decision discussed above, maj. op. at 709-10, the Court referred to the established rule that:
Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested can not be granted by merely ordering the cessation of the conduct complained of but will require ... the disposition of unquestionably sovereign property.
337 U.S. at 691 n. 11, 69 S.Ct. at 1462 n. 11 (citation omitted). Nor did the dissent in Larson have any quarrel with this rule. Id. at 715, 69 S.Ct. at 1474 (referring to “interference with government property”). The doctrine unanimously endorsed by the members of the Larson Court, upholding sovereign immunity in the face of a constitutional challenge by a plaintiff claiming sovereign property, describes a genus of claims within which a claim to governmental benefits such as Bartlett’s is a species. See also Edelman v. Jordan, 415 U.S. 651, 664-69 , 94 S.Ct. 1347, 1356-58 , 39 L.Ed.2d 662 (1974) (claim to payment of previously denied benefits barred by eleventh amendment despite constitutional challenge to state’s administration of benefit program).
In none of these cases, whether applying the United States’ sovereign immunity or that of a state under the eleventh amendment, did the Court concern itself with whether any other judicial forum was available for a constitutional claim, and, as just shown, in a number of these cases no such forum existed. The majority is simply wrong in asserting that the Supreme Court has never held that there was no judicial forum in which a constitutional challenge to a statute could be heard. The Supreme Court has done so repeatedly. The truth of the matter is the reverse of the majority's claim. No Supreme Court decision has ever denied sovereign immunity, in a case where it otherwise would apply, because a constitutional challenge to a statute was advanced.
Some of the cases just discussed may go beyond the limited thesis maintained here: that sovereign immunity bars a constitutional challenge to the denial of a governmental benefit unless Congress waives that immunity. Insofar as these cases address coercive governmental conduct, I take no position on whether they remain good law today. But surely these decisions by the Supreme Court, unless they have all somehow been silently overruled, which I find impossible to believe, demonstrate that the district court was not empowered to hear Bartlett’s benefit claim even though it incorporates a constitutional challenge.
The existence of sovereign immunity in cases involving constitutional challenges to a statute is further supported by the undeniable existence of sovereign immunity when constitutional challenges are made to the actions of executive branch officials. Larson, of course, says that explicitly: “[A] suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally.” 337 U.S. at 691 n. 11, 69 S.Ct. at 1462 n. 11. This is the reason that the constitutional tort created in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), would support a damage action against the agents only and not against the United States. Justice Harlan’s concurrence made this point explicit. 403 U.S. at 410 , 91 S.Ct. at 2011 . Congress understood the law in the same way and amended the Federal Tort Claims Act to waive sovereign immunity as to Bivens claims. 13 See also Edelman v. Jordan, 415 *728 U.S. 651, 664-69 , 94 S.Ct. 1347, 1356-58 , 39 L.Ed.2d 662 (1974) (eleventh amendment bars damage remedy based on constitutional and statutory challenge to state administration of benefit program). Recent decisions of this court have also found that sovereign immunity bars constitutional challenges to executive action. Hohri v. United States, 782 F.2d 227, 244-45 (D.C.Cir.1986) (sovereign immunity bars constitutional challenge seeking damages for executive internment of Japanese during World War II); Morris v. Washington Metropolitan Area Transit Authority, 781 F.2d 218 (D.C.Cir.1986) (extending sovereign immunities of both state and federal governments to the Washington Metropolitan Area Transit Authority to bar suit alleging that plaintiffs discharge as a Transit Police officer violated the Constitution).
The significance of these cases is clear. It is a more serious matter to bar constitutional claims against the government based on the actions of an executive officer than it is to bar such a claim based on the asserted unconstitutionality of an act of Congress. This, no doubt, is the reason that there is a presumption of judicial review as to the former but not the latter. See supra pp. 717-18. There are thousands of executive officers capable of inflicting unconstitutional injury but who are many tiers down the executive branch hierarchy. Their actions often do not reflect the judgment of anyone who is directly democratically accountable. By contrast, an act of Congress is the deliberate decision of the members of the two Houses of Congress which must be approved by the President or passed by supermajorities in Congress over the President’s veto. Since sovereign immunity protects the government from damage claims because of the unconstitutional actions of obscure executive officials, it would seem, a fortiori, that it may bar claims based on the alleged unconstitutionality of a statute.
To take Robison’s brief statement about constitutional difficulties in barring a constitutional challenge to a benefits statute as, sub silentio, removing the doctrine of sovereign immunity from this area would thus produce sweeping and revolutionary results. It would mean, for example, that the Supreme Court’s statement in Bowen v. City of New York that section 405(g), the provision allowing judicial review there, which is the same provision that governs appeals under the Medicare Act here, is a waiver of sovereign immunity, a statement made twelve years after Robison , must be regarded as erroneous in light of the earlier dictum. It would mean that the distinction between benefit claims and resistance to enforcement actions laid down in cases such as Lynch and Maricopa County , and recognized in the Hart Dialectic as well as in the Davis treatise, has been silently obliterated. It should mean that Salfi and Nestor , to the degree they rely upon the same distinction, are at least cast into doubt. It should mean, for the reasons just given, that the government may no longer claim sovereign immunity against damage actions based on the unconstitutional conduct of its officers. If sovereign immunity is abandoned as to constitutionally-based benefit claims, it would seem impossible to support immunity anywhere. The Tucker Act’s waiver of immunity as to constitutional claims would be made superfluous. These upheavals in established doctrine are too much to draw from a remark in Robison . I think it safer for an inferior court to proceed on the premise that the law of sovereign immunity remains what it always has been and that it *729 therefore deprives the district court of jurisdiction over Bartlett’s suit.
III.
A word should be said about the majority opinion. The majority reads the jurisdictional statute involved here as containing an unstated exception for constitutional challenges to the Medicare Act. I have sufficiently explained why this construction of the statute is not “fairly possible,” as the Supreme Court states that a construction must be if it is employed to avoid deciding a constitutional issue. Having purchased the right to avoid the constitutional issue at an unacceptably high price in the deformation of the statute, however, the majority then unaccountably casts its purchase away by going on to decide the constitutional issue Robison avoided. Resolution of that question — the power of Congress to remove jurisdiction over constitutional issues in any and all types of cases— is utterly unnecessary under either the majority’s rationale or my own.
Despite the majority’s purported resolution of the issue of Congress’ plenary power over jurisdiction, the problem posed by Ex parte McCardle, I express no opinion on that subject other than to note that it is far more complex than the majority’s cursory disposition of it would suggest. Scholars are sharply divided on the subject and the literature is voluminous. Among the articles that conclude Congress has some degree of power to remove jurisdiction to hear constitutional defenses in enforcement cases are: Anderson, The Power of Congress to Limit the Appellate Jurisdiction of the Supreme Court, 1981 Det.C. L.Rev. 753; Graglia, The Power of Congress to Limit Supreme Court Jurisdiction, 7 HarvJ.L. & Pub.Pol’y 23 (1984); Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 Ariz.L.Rev. 229 (1973); Wechsler, The Courts and the Constitution, 65 Colum.L.Rev. 1001 (1965). Among those reaching generally the opposite conclusion are: Ratner, Congressional Power over the Appellate Jurisdiction of the Supreme Court, 109 U.Pa.L.Rev. 157 (1960); Rotunda, Congressional Power to Restrict the Jurisdiction of the Lower Federal Courts and the Problem of School Busing, 64 Geo.L.J. 839 (1976); Sager, The Supreme Court, 1980 Term — Foreword: Constitutional Limitations on Congress’ Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv.L.Rev. 17 (1981). 14 It seems to me rash, to put it no higher, to offer a quick answer to this profound question in a case that does not require or, given the majority’s statutory construction, even touch upon it. 15
It may be that the doctrine of sovereign immunity will change in the way the majority desires; it may be that the remark in Robison about the constitutional difficulties that would be presented if a benefits statute denied review of its own constitutionality presages a radical transformation of what had seemed settled doctrine. As Justice Frankfurter said in dissent in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 709 , 69 S.Ct. 1457, 1470 , 93 L.Ed. 1628 (1949):
The course of decisions concerning sovereign immunity is a good illustration of the conflicting considerations that often struggle for mastery in the judicial process, at least implicitly. In varying de *730 grees, at different times, the momentum of the historic doctrine is arrested or deflected by an unexpressed feeling that governmental immunity runs counter to prevailing notions of reason and justice. Legal concepts are then found available to give effect to this feeling—
Perhaps that is beginning to happen with respect to sovereign immunity in this field.
The implications of such a development should be recognized, however, before the next step is taken. It must be remembered that here Congress has not merely failed to articulate a waiver of sovereign immunity, it has affirmatively stated that there shall be no judicial review of the Secretary’s denial of claims under $1000. To rule that this denial of review is unconstitutional is to decide the question of ultimate power that has been debated at least since McCardle, for if Congress may not prevent review of claims for government benefits, it certainly may not take the more drastic action of barring constitutional challenges to a statute by a defendant against whom the statute is sought to be enforced. If a step so momentous is to be taken, it should not be taken by an inferior court, particularly in a case where the court majority’s statutory construction makes the step superfluous. If, on the other hand, the concept of sovereign immunity retains enough vitality to bar a claim for benefits, a decision to that effect has no implications as to congressional power to remove constitutional jurisdiction in enforcement actions.
The division between the majority and myself reflects a discontinuity in the law. Robison’s remark about constitutional difficulties simply cannot be reconciled with Bowen v. City of New York’s recognition that the judicial review provisions in question involve sovereign immunity, which the Court continues to honor. For the reasons given, I think it best to conclude, pending further clarification from the Supreme Court, that sovereign immunity denied the district court jurisdiction to entertain Bartlett’s claim.
I dissent.
. 42 U.S.C. § 405 (g) (1982) provides in part:
Any individual, after any final decision of the Secretary ..., irrespective of the amount in controversy, may obtain a review of such decision by a civil action ... [that] shall be brought in the district court of the United States____
. 42 U.S.C. § 405 (h) (1982) provides:
The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim arising under this subchapter.
. 42 U.S.C. 1395Ü (1982) provides:
The provisions of sections 406 and 416(j) of this title, and of subsections (a), (d), (e), (f), (h), (i), Q), (k), and (l) of section 405 of this title, shall also apply with respect to this sub-chapter to the same extent as they are applicable with respect to subchapter II of this chapter.
. If, for some reason, one did not read § 405(h) as an assertion of sovereign immunity, that would mean that the Supreme Court in Bowen v. City of New York read § 405(g) as a waiver of a sovereign immunity that exists as to benefit claims independently of § 405(h). This would not alter the conclusion in the text, for the sovereign immunity as to benefit claims under the Social Security Act would certainly apply to benefit claims under the Medicare Act. The claims are of identical types and, moreover, the judicial review provisions of the two statutes are integrated.
. The majority also attempts to by-pass the amount in controversy requirement by relying upon the Medicare Act’s exhaustion requirement. Maj. op. at 701. But exhaustion doctrine is completely irrelevant to this question of statutory interpretation. The issue is not whether this court can find any basis in a remotely analogous doctrine to rationalize the decision to exercise its power of review; the issue is simply whether in writing this statute Congress explicitly withheld that power in cases like this one. Moreover, the majority forgets that if Bartlett’s claim were for $86 rather than $286, the same statutory provision would bar both administrative and judicial review of her $86 claim, 42 U.S.C. § 1395ff(b)(2) (1982) (no hearing available for claims under $100), which shows even more directly that the majority’s reference to the exhaustion requirement is entirely irrelevant to a proper interpretation of this statute.
. Setting aside the doctrine of sovereign immunity, the significance this passage might have for the present case is not clear. It is true that, if the limits on judicial review are construed to apply to constitutional challenges to the statute, Bartlett can obtain no judicial review. On the other hand, it is not true that the constitutionality of the statutory provision in question can never receive judicial consideration. The challenge Bartlett wishes to make can be made by any claimant in the same position but with a claim of $1000 or more. Robinson said that serious questions of constitutionality would be raised if § 211(a) were construed so that it "bars federal courts from deciding the constitutionality of veterans' benefits legislation.” In that case, if Robison could not bring the issue to the courts, nobody could. Similarly, as noted, Salfi identifies as extraordinary, requiring "clear and convincing" evidence of congressional intent, and also of dubious constitutionality a statutory limitation that would mean that "absolutely no judicial consideration of the issue would be available.” These passages may mean that the Court was concerned that a constitutional issue not forever escape judicial review rather than that a particular claimant should obtain review. If so, this seems to be a distinction new to the law, and one, I am inclined to think, that reads too much into words not chosen with this issue in mind. Moreover, to say that Congress could not entirely remove a constitutional claim from judicial consideration in benefits legislation would be to rule upon the much larger question of Congress’ power over jurisdiction as to all constitutional issues. See text at pp. 729-30, infra.
. Two other cases require mention. In Heckler v. Ringer, 466 U.S. 602 , 104 S.Ct. 2013 , 80 L.Ed.2d 6222 (1984), Medicare claimants mounted constitutional and statutory challenges to the policy of the Secretary of Health and Human Services to deny reimbursement for a particular surgical procedure. The Court denied review because the claimants had not presented their claims to the Secretary. One litigant, Ringer, alleged that he could not do so because he could not afford the surgery unless reimbursement were guaranteed. The Court’s ruling thus meant that Ringer could never obtain judicial consideration of his challenge. The Court said, however, that "whatever constitutional claims respondents assert are clearly too insubstantial to support subject-matter jurisdiction." 466 U.S. at 609 n. 4, 104 S.Ct. at 2018 n. 4. Though this was said with respect to claims for benefits under Part B of the Act, the constitutional arguments advanced were apparently the same as those made with respect to Part A claims, with which the opinion dealt. Thus, Ringer was not denied review of any serious constitutional claim, and the decision is of no assistance here.
In Bowen v. Michigan Academy of Family Physicians, — U.S. -, 106 S.Ct. 2133 , 90 L.Ed.2d 623 (1986), physicians brought suit claiming illegal and unconstitutional discriminatory treatment by the Secretary in his regulations governing allowable payments for Medicare Part B services; the Court found that § 405(h) did not bar their suit. Unlike Salfi or Bartlett, however, the Michigan Academy physicians did not contest a denial of a claim to benefits, nor did they seek the payment of a claim to benefits. Their claim, therefore, did not "arise under” the Medicare Act and § 405(h) did not restrict jurisdiction.
. The Secretary has not argued sovereign immunity to this court, but since Congress has asserted sovereign immunity in the statute we construe, and since that doctrine determines our jurisdiction, this court must itself raise the question.
. Both the congressional power to regulate federal court jurisdiction and the doctrine of sovereign immunity are rooted in the Constitution, though the latter is not expressly found there. The Supreme Court has held that the immunity of the United States from suit except upon its consent is implicit in the provision of article III, section 2, that the judicial power of the United States extends to "Controversies to which the United States shall be a Party.” Monaco v. Mississippi, 292 U.S. 313, 321 , 54 S.Ct. 745, 747 , 78 L.Ed. 1282 (1934); Williams v. United States, *722 289 U.S. 553, 572-73 , 53 S.Ct. 751, 757 , 77 L.Ed. 1372 (1933).
. The majority seeks to employ Lynch to uphold its rewriting of the Medicare Act. Maj. op. at 708. The very quotation the majority offers demonstrates the fallacy in its argument. Justice Brandéis based his conclusion that Congress had consented to suit on the fact that the statute at issue contained “no separate provision ... dealing with the remedy" apart from the underlying legal right, Lynch, 292 U.S. at 586 , 54 S.Ct. at 847, which enabled him to reach the issue of congressional intent. The Medicare Act sections before this court, in contrast, are nothing but a set of “separate provision[s] ... dealing with the remedy.” Lynch thus undermines the majority’s position.
. The author of Maricopa County was Justice Douglas, who, dissenting in Glidden Co. v. Zdanok, 370 U.S. 530 , 82 S.Ct. 1459 , 8 L.Ed.2d 671 (1962), objected to the fact that Justice Harlan, the author of the majority opinion, cited Ex parte McCardle with approval. McCardle, as noted, accepted the power of Congress to eliminate the Court’s jurisdiction to decide an appeal from a denial of habeas corpus. Justice Douglas said: “There is a serious question whether the McCardle case could command a majority view today." 370 U.S. at 605 n. 11, 82 S.Ct. at 1501 n. 11. The contrast between his remarks in Maricopa County and in Glidden suggests that Justice Douglas did not think that withdrawing consent to be sued for a government benefit raised constitutional problems but that removal of the Court’s jurisdiction to entertain a petition for habeas corpus did — the distinction Professor Hart found in the case law.
The majority suggests that my reliance on sovereign immunity to decide this case “has effectively decided the precise constitutional issue,” i.e., the McCardle issue, that I claim to avoid deciding. Maj. op. at 704. In making this mistaken suggestion, the majority fails to comprehend the difference between a claim to Medicare benefits and a prisoner’s writ of habeas corpus — a difference Justice Douglas understood perfectly well, and a difference the law has always recognized.
. See also Heckler v. Chaney, 470 U.S. 821, 832 , 105 S.Ct. 1649, 1656 , 84 L.Ed.2d 714 (1985) (agency's refusal to enforce not subject to judicial review in part because agency's "coercive power over an individual’s liberty or property” not implicated) (emphasis in original); Ortwein v. Schwab, 410 U.S. 656 , 93 S.Ct. 1172 , 35 L.Ed.2d 572 (1973) (|25 filing fee for appeal of state welfare benefit determination constitutional as applied to claimant unable to pay since initial administrative hearing provided and claimant’s interest in increased welfare payments not a "fundamental interest”); De Magno v. United States, 636 F.2d 714, 725 (D.C.Cir.1980) ("It is one thing for an agency to have the final say over whether an individual will continue to receive a gratuitous governmental benefit; it is quite another for it to assert a right to use the coercive power of the government to seize and convert to its own use an individual’s property without any possibility of judicial review.’’) (dictum) (footnote omitted).
The analysis in the text, of course, is not meant to suggest that gross classifications in benefits legislation are never found unconstitutional. See, e.g., Califano v. Westcott, 443 U.S. 76 , 99 S.Ct. 2655 , 61 L.Ed.2d 382 (1979); Califano v. Goldfarb, 430 U.S. 199 , 97 S.Ct. 1021 , 51 L.Ed.2d 270 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636 , 95 S.Ct. 1225 , 43 L.Ed.2d 514 (1975).
. [A]fter the date of enactment of this [amendment to the Federal Tort Claims Act, 28 U.S.C. § 2680 (h) (1982)], innocent individuals who are subjected to raids [like that in Bivens ] will have a cause of action against the individual Federal agents and the Federal Government. Furthermore, this provision should be viewed as a counterpart to the Bivens case and its progenty [sic], in that it waives the defense of sovereign immunity so as to make the Government independently liable in damages for the same type of conduct that is alleged to have *728 occurred in Bivens (and for which that case imposes liability upon the individual Government officials involved).
S.Rep. No. 588, 93d Cong., 1st Sess. 3 (1973) (emphasis added), quoted in Carlson v. Green, 446 U.S. 14, 20 , 100 S.Ct. 1468, 1472 , 64 L.Ed.2d 15 (1980). The Court in approvingly quoting this language thus acknowledged again that although a Bivens plaintiff brings a claim based directly on the Constitution, the United States is under no obligation to waive its sovereign immunity from that claim (even though the individual official may be unavailable or judgment-proof). See also S.Rep. No. 588, supra, at 2-3 ("As a general principle under present law, if a Federal agent violates someone’s constitutional rights ... there is no remedy against the Federal Government. This ancient doctrine — sovereign immunity — stands as a bar.”).
. In order to realize just how complex the issue is and how enormous the literature has become, see Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan.L.Rev. 895, 896 n. 3 (1984).
. The majority may be moved to state a position on this subject because of its expressed concern that application of the doctrine of sovereign immunity might permit abhorrent welfare legislation. The truth is, however, that constitutional doctrines cannot be framed to guard against every hypothetical evil. Much must be left to the wisdom and integrity of elected representatives. Were it otherwise, courts would long ago have had to abandon not only sovereign immunity but a variety of doctrines of justiciability, such as standing, political question, and the requirement of a case or controversy, that regularly operate to keep courts from constitutional issues. That sovereign immunity does so is not, of itself, sufficient ground to jettison the doctrine.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476052. Public record. Not legal advice.