Amicus Curiae Brief — Robertson v. Seattle Audubon Soc.

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) BRIEF OF AMICUS CURIAE

IN SUPPORT OF AFFIRMANCE

Patti A. Goldman

(Coitnsel of Record)

Alan B. Morrison

David C. Viadeck

Public Citizen Litigation Group

2000 P Street, N.W.

Washington, D.C. 20036

(202) 833-3000

Attorneys for Amicus Pub. ic Citizen

[BEST AVAILABLE COPY

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1596

F. DALE ROBERTSON, CHIEF, UNITED STATES

FOREST SERVICE, ET AL.,

Petitioners,

Vv.

SEATTLE AUDUBON SOCIETY, ET AL..

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

MOTION OF PUBLIC CITIZEN FOR LEAVE

TO FILE A BRIEF IN SUPPORT OF

AFFIRMANCE AS AMICUS CURIAE

Public Citizen is a non-profit organization that works to

ensure government accountability. One means that Public Citi-

zen has used to further this objective is advocating the position

that the three branches of the federal government must abide by

the constitutional doctrine of separation of powers. Of particular

relevance to this case, Public Citizen attorneys have argued that

Congress may not avoid political accountability by resorting to

expedient shortcuts that evade the strictures of the doctrine of

separation of powers. See Immigration & Naturalization Service v.

Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S. 714

(1986); Metropolitan Washington Airports Authority v. Citizens for

the Abatement of Aircraft Noise, 111 S. Ct. 2298 (1991).

The issue in this case is whether Congress exceeded its role

by mandating a particular result in a pending case. Public Citizen

believes that Congress’s action usurped the role of the Judicial

Branch. However, Public Citizen reaches this result by an analysis

that produces a broader set of prohibitions than the court of

appeals opinion or the positions of any of the parties on what

Congress can do to achieve a particular outcome in a pending

case. Thus, while the court of appeals drew the line between

permissible legislative repeals or amendments on the one hand,

and impermissible directions to courts commanding a particular

result on the other, Public Citizen takes the position that the more

appropriate dividing line is between laws of general applicability

and case-specific ones.

Under this approach, Congress cannot constitutionally compel

a particular outcome in a pending case, without adopting a rule of

general applicability, regardless of whether it does so by explicitly

directing the court to reach a particular result, or by couching that

direction as a temporary exemption of the challenged actions

from the unchanged requirements of the laws that form the basis

of the challenge, or by eliminating the courts’ jurisdiction to hear

the case. Because the Constitution prohibits Congress from

directing a court to reach a particular result in a pending case,

Congress must not be permitted to accomplish the same result by

using alternative language that makes no substantive change in

the underlying legal standards.

Because Public Citizen is presenting a broader analysis than

is being presented by the parties or the other amici, it respectfully

asks the Court to grant it leave to file the accompanying brief as

amicus curiae in support of affirmance of the judgment below.!

I Respondents Association of O & C Counties and Benton County have

not consented to this motion; respondents Seattle Audubon Society et a/. have

consented, and the other respondents and petitioners have not yet indicated

whether they consent.

OCTOBER 199]

Respectfully submitted,

Patti A. Goldman

(Counsel of Record)

Alan B. Morrison

David C. Vladeck

Public Citizen Litigation Group

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

(202) 833-3000

Attorneys for Public Citizen

i

TABLE OF CONTENTS

eT snnpiionesi il

Introduction and Summary of Argument ......................00000000000000 l

SEP EITETTITIITIIT intthiscticinssichecandipnatiaiaiadiiesiatanieiiaaiidetiiiiiia tases 3

FRI TITIID seicisnscosisvnstcsssitecniniihcaseicinieaaaniabiiitiensatiiiiintietibibdeitsaitataitaaig 7

2 Se - e a Se ne Lee ae eee 16

il

TABLE OF AUTHORITIES

Cases: Page:

Bowsher v. Synar,

UI 6 fl). | l

Buckley v. Valeo,

424 US. 1 (1976) (per Curiam) .............c-ccecereeeeeenenenenennenenes 7

De Chastellux v. Fairchild,

QS 12

Hart v. United States,

VU, ___ 11

Immigration & Naturalization Service v. Chadha,

RUE Dee 1,7, 8

J.W. Hampton Jr., & Co. v. United States,

TIE ULB. BOG CITB) ceccorncscerscesescscssecesesescrcssescnsesvesesvesssosnseneese 8

Ex Parte McCardle,

74 U.S. (7 Wall.) 506 (1869) ...........ccccccecesesesenesenenennnenenennees 12

Ex Parte Yerger,

TS US. (7 Wall.) BS (1869) ...2.2.200.020.0ssscssscevenersesessrsescessesees 12

Metropolitan Washington Airports Authonity v.

Citizens for the Abatement of Aircraft Noise,

TER Ge BT, | ee 1, 2, 8, 15

Miller v. Florida,

OE ee 9

Nixon v. Administrator of General Services,

ee saesiiianiiaiatemameaaanied 9

ill

Norther Pipeline Construction Co. v. Marathon

Pipe Line Co., 458 U.S. 50 (1982) ...........ccccceccscsesseseeeeeeeeeeen 9

Pennsylvania v. Wheeling & Belmont Bridge Co.,

Fe CPs CEP BE) BOO CID ccccccecsssccssenecsnsescecesconnensesenenes 10

Pennsylvania v. Wheeling & Belmont Bridge Co.,

59 U.S. (18 How.) 421 (1856) .0.........cccccececeseeeeseseees 10, 11, 14

Pension Benefit Guaranty Corp. v. R.A. Gray & Co.,

gk, RE Ae )

Pope v. United States,

A 15

Portland Audubon Society v. Hodel,

866 F.2d 302 (9th Cir.), cert. denied sub nom.,

Northwest Forest Resource Council v. Portland

Audubon Society, 109 S. Ct. 3229 (1989) o.oo 5

Portland Audubon Society v. Lujan,

884 F.2d 1233 (9th Cir. 1989), cert. denied, 110

eae ctrecietreirnetatasinticiceitieienriinrerinttccssinidccntenscnenien 5

Seattle Audubon Society v. Lujan,

C89-160 WD (W.D. Wash. 1989) .0.0.0...cccccccccccsesessseseeeneees 5

Springer v. Government of the Philippine Islands,

4 | ee 7

State v. Fleming,

TTS een 12

United States v. Klein,

80 U.S. (13 Wall.) 128 (1871) .0......ccccccceceseeeeeeeeen 10, 11, 12

United States v. Lovett,

Le a 9 11

iv

United States v. Padelford,

FS US. CO Wall.) SO0 (IBFD) cccccncererecescevcccsvecscececcscscececssre0e: 10

United States v. Sioux Nation of Indians,

BD Ts Fe CI cecenseceteeseeensemennmnenenn 15

United States v. Sperry Corp.,

rn 9

United States v. Will,

OE A Bee CI eterecensennscsnsnsscscsssneessevsssonvsnvcssssscsnonsssncesenss 9

Usery v. Turner Elkhom Mining Co.,

GD GG, 6 CI cerecccznnsnszccsscsenesvcczrvenscssnevsnsesszsessscessesecsncvosense 9

Weaver v. Graham,

I Soe CD eccecnescncecsccnessceseneneseneenseernsssessrssnvessenscenennens 9)

)

Constitutional Provisions:

PB ARLE et 8,9

Bill of Attainder Clause, Art. I, § 10, cl. 1 «0.0.0.0... 9, 12, 14

Due Process Clause, Amendment V ..................ccccceceeceeeeeeees 9 14

Ex Post Facto Clause, Art. I, § 10, ch. 1 ...........ceccccceceeeeees 9 14

Statutes:

Arizona-Idaho Conservation Act of 1988,

Pub. L. No. 100-696, §§ 602, 607, 102 Stat.

ey SE cechittaneshiniienictiannnentinmmnpnremmnentenn 4

Continuing Appropriations Act for Fiscal Year 1987,

Pub. L. No. 99-591, § 114, 100 Stat. 3341-349

SESS ESE RWS INES ie race oe 4

Continuing Appropriations Act for Fiscal Year 1988,

Pub. L. No. 100-202, § 314, 101 Stat. 1329-254

RETESET a ae 4-5

Energy & Water Development Appropriation Act

of 1980, Pub. L. No. 96-69, 93 Stat. 437, 449-50

ee 4

Federal Land Policy and Management Acct,

a 13

Department of the Interior & Related Agencies

Appropriations Act for Fiscal Year 1990, Pub.

L. No. 101-121, §§ 312, 318, 103 Stat. 701, 743,

Se TIED ceiteiererermneenesiedadeieainibditdetanseaiapatentiintinsacnntiinesnnenenes passim

Department of the Interior & Related Agencies

Appropriations Act of 1989, Pub. L. No. 100-446,

$§ 314, 321, 102 Stat. 1774, 1825-27 (1988) oo... 4,5

National Environmental Policy Act,

CL 14

National Forest Management Act,

TAA 13

Supplemental Appropriations Act for Fiscal Year

1985, Pub. L. No. 99-88, 99 Stat. 293, 340 (1985) ......... 3,4

Trans-Alaska Pipeline Authorization Act,

Pub. L. No. 93-153, § 203, 87 Stat. 576, 584-85

EA A 3,4

Legislative & Other Materials:

135 Cong. Rec. $8776 (July 26, 1989) oo... cccccccccccccccscesseeseeveens 5,6

135 Cong. Rec. $8791 (July 26, 1989) .o.....cccccccccccsessescessessveneeneeee 6

The Federalist (E. Earle ed. 1937) ........ccccccccccccccecssssecsesseeeesnee 7,8

S. Rep. No. 101-85, 10 1st Cong., Ist Sess. (1989) oo... occu. 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1596

F. DALE ROBERTSON, CHIEF, UNITED STATES

FOREST SERVICE, ET AL..,

Petitioners,

v.

SEATTLE AUDUBON SOCIETY, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN

IN SUPPORT OF AFFIRMANCE

INTRODUCTION AND SUMMARY OF ARGUMENT!

In three recent cases, this Court has admonished that Con-

gress may not avoid political accountability by resorting to expe-

dient shortcuts that evade the strictures of the doctrine of separa-

tion of powers. See Immigration & Naturalization Service v.

Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S. 714

(1986); Metropolitan Washington Airports Authority v. Citizens for

The interest of avnicus curnae is sei forth inthe aCconmipany ing motion for

leave to file this brief

the Abatement of Aircraft Noise, 111 S. Ct. 2298 (1991). This case

involves another such device by which Congress has attempted to

dictate the result that a court must reach in a pending case,

without changing the underlying legal standards. There is general

agreement between the parties that the Constitution prohibits

Congress from prescribing a rule of decision for a particular case.

The issue addressed in this brief is whether Congress can evade

this prohibition by resorting to clever legislative drafting.

While Public Citizen agrees with the result reached below, it

embraces a broader rationale for finding that Congress exceeded

its constitutional role. The court of appeals drew the line between

permissible legislative repeals or amendments on the one hand,

and impermissible directions to courts to reach a particular result

in a pending case, on the other. However, under this dichotomy,

Congress could repeal a portion or particular application of a

statute, even if it were done only to the extent, and for the time,

necessary to alter a particular judicial ruling in a pending case.

Such a case-specific repeal presents all of the dangers of an ex-

plicit legislative direction of the same outcome.

Public Citizen urges the Court to draw a more appropriate

dividing line between laws of general applicability and those that

are case-specific only. Under that approach, Congress may

compel an outcome in a case by changing generally applicable

legal standards, but not simply for this case and the particular

circumstances underlying it. Thus, Congress could not constitu-

tionally compel a particular outcome in a pending case without

adopting a rule of general applicability, regardless of whether it

did so by explicitly directing the court to reach that result, or by

couching that direction in an exemption of the challenged actions

from the unchanged requirements of the laws that form the basis

of the challenge, or by eliminating the courts’ jurisdiction to hear

the case. All of these legislative devices have the same impermis-

sible purpose and effect: they place Congress in the position of

dictating the outcome of a pending case without making any

principled, substantive change in the underlying legal require-

ments. Because, as all of the parties agree, the Constitution

prohibits Congress from directing a court to reach a pdfticular

result in a pending case, Congress must not be permitted to

accomplish the same result by using alternative language that

makes no substantive change in the underlying legal require-

ments.

BACKGROUND

It is common practice for unsuccessful litigants to seek re-

dress in Congress. In response to such constituent demands,

Members of Congress frequently try to change the result of judi-

cial decisions.

Under normal congressional procedures, the congressional

committees with jurisdiction over the maiter will review the deci-

sion, hold hearings, and develop legislation that alters the sub-

stantive standards of the underlying law to correct what Congress

perceives to be flaws in the system. Future cases will be governed

by the new legal standards, quite possibly with a different outcome

than the case that spurred the change in the law.

Sometimes, however, Members of Congress seek to short-

circuit committee review and the development of general changes

in the underlying legal obligations. Instead, they devise a quick-

fix solution, frequently in the form of an appropriations rider, that

dictates a different result in a pending case without making any

general changes in the underlying laws. Other Members of Con-

gress tend to defer to the sponsors of case-specific riders. This

tendency is especially pronounced where the rider is primarily of

local concern, given the tradition of pork barrel politics and def-

erence to local delegations on what are perceived to be local mat-

ters. As a result, these quick-fix measures evade any thorough

analysis and avoid the political consequences of amending the

underlying legal standards outright.

In the environmental law context, these case-specific riders

have taken various forms. Some have directed that the challenged

agency action go forward without any further action under the

statute on which the action was challenged and found deficient.

See Trans-Alaska Pipeline Authorization Act, Pub. L. No. 93-153,

§ 203, 87 Stat. 576, 584-85 (1973); Supplemental Appropriations

Act for Fiscal Year 1985, Pub. L. No. 99-88, 99 Stat. 293, 340

aaa ites

(1985). Others have directed a particular agency action to go

forward, “notwithstanding” the statutory requirements that a

court had found were violated by the action, or “notwithstanding”

an injunction issued by a court. Energy & Water Development

Appropriation Act of 1980, Pub. L. No. 96-69, 93 Stat. 437, 449-50

(1979); Continuing Appropriations Act for Fiscal Year 1987, Pub.

L. No. 99-591, § 114, 100 Stat. 3341-349 (1986); Supplemental Ap-

propriations Act for Fiscal Year 1985, Pub. L. No. 99-88, 99 Stat.

293, 340 (1985).

Some of the more explicit riders have directed the courts to

find particular facts or to deem the agency’s action to meet the

requirements of the law. For example, one rider directed that a

draft environmental impact statement would be treated as a final

one, notwithstanding the requirements of the law or court injunc-

tions then in effect. Department of the Interior & Related Agen-

cies Appropriations Act of 1989, Pub. L. No. 100-446, § 321, 102

Stat. 1774, 1827 (1988). Another rider provided that the require-

ments of certain laws “shall be deemed to be satisfied” by what-

ever unspecified actions had been taken by the agency with re-

spect to the underlying matter. Arizona-Idaho Conservation Act

of 1988, Pub. L. No. 100-696, §§ 602, 607, 102 Stat. 4571, 4597-99

(1988). Most such riders also provide that the previously chal-

lenged action no longer may be subject to judicial review. See

Trans-Alaska Pipeline Authorization Act, Pub. L. No. 93-153, §

203, 87 Stat. 576, 584-85 (1973); Supplemental Appropriations

Act for Fiscal Year 1985, Pub. L. No. 99-88, 99 Stat. 293, 340

(1985).

Congress followed this course of action with respect to the

disputes underlying these cases. Although not at issue in this case,

an earlier appropriations rider had responded to a lawsuit chal-

lenging petitioner Bureau of Land Management’s (“BLM’s”)

failure to prepare a supplemental environmental impact state-

ment incorporating new information on the status of the spotted

owl. That rider stated:

Nothing shall limit judicial review of particular activi-

ties on these lands: Provided, however, That there shall

be no challenges to any existing plan on the sole basis

that the plan in its entirety is outdated, or in the case of

the Bureau of Land Management, solely on the basis

that the plan does not incorporate information avail-

able subsequent to the completion of the existing plan:

Provided further, That any and all particular activities to

be carried out under existing plans may nevertheless be

challenged.

Continuing Appropriations Act for Fiscal Year 1988, Pub. L. No.

100-202, § 314, 101 Stat. 1329-254 (1987).?

This rider derailed only one of many challenges to the BLM’s

timber sales program in public lands in Oregon that contain spot-

ted owls. See Portland Audubon Society v. Lujan, 884 F.2d 1233

(9th Cir. 1989), cert. denied, 110 S. Ct. 1470 (1990); Portland

Audubon Society v. Hodel, 866 F.2d 302 (9th Cir.), cert. denied sub

nom. Northwest Forest Resource Council v. Portland Audubon

Society, 109 S. Ct. 3229 (1989). Subsequently, several environ-

mental organizations filed a lawsuit challenging petitioner Forest

Service’s violation of numerous environmental laws in its timber

sales program in public lands in the State of Washington on which

spotted owls depend for their survival. Seattle Audubon Society v.

Robertson, C89-160WD (W.D. Wash.). After the district court

enjoined timber sales in certain public lands in Washington, id.

(order, Mar. 1989), the timber industry protested vigorously to

the public and to their Senators and Representatives. In re-

sponse, Senators from Washington and Oregon introduced an ap-

propriations rider to remove the injunctions in the two cases. The

Senate amendment would have required timber sales to go

forward in spotted owl habitat “notwithstanding any provision of

law that is a basis for any stay, restraining order or injunction

issued in” the two cases identified by caption and docket number.

135 Cong. Rec. $8776 (July 26, 1989). It also would have barred

the courts from issuing any restraining order or injunction, or

2 This rider was reenacted without change in subsequent years. Depart-

ment of the Interior & Related Agencies Appropriations Act for Fiscal Year 1989,

Pub. L. No. 100-446, § 314, 102 Stat. 1774, 1825-26 (1988); Department of the

Interior & Related Agencies Appropriations Act for Fiscal Year 1990, Pub. L. No.

101-121, § 312, 103 Stat. 701, 743 (1989).

voiding any sale, in fiscal year 1990 with respect to such timber

sales. Id?

In the House of Representatives, there was strong opposi-

tion to insulating the agencies from the requirements of the

underlying environmental laws and from judicial remedies. See

Representatives’ Letter of Sept. 11, 1989, reprinted as App. B to

Respondents’ Brief. As a result, the conferees substituted a

straightforward direction to the courts that management of the

public lands “according to” portions of the rider “is adequate con-

sideration for the purpose of meeting the statutory requirements

that are the basis for the consolidated cases,” which the rider then

cites by caption and docket number. Section 318(b)(6)(A), De-

partment of the Interior & Related Agencies Appropriation Act

for Fiscal Year 1990, Pub. L. No. 101-121, tit. III, 103 Stat. 701, 747

(1989). Congress made this direction without exempting the

agencies, the lands, or the spotted owl from the underlying

environmental laws, and without otherwise modifying the re-

quirements of such laws. To the contrary, the conference report

explicitly states: “This section in no way alters application of the

Endangered Species Act or other environmental laws to Forest

Service or BLM management activities.” Opp. Cert. App. 122a.

The rider also did not remove judicial remedies generally, except

for its bar on temporary relief, whose effect is tempered by the

rider’s direction to the courts to expedite such cases. Section

318(g). It appears that the conferees left the agencies subject,to

the requirements of the underlying environmental laws, but

ensured that there would be no way for the public or the courts to

enforce the most pertinent of those legal obligations -- those that,

had formed the basis of the previous challenges and that the ,

courts previously had indicated had likely been violated.

The rider at issue in this case combines some of the worst

features of case-specific lawmaking. There were no hearings,

there was little debate, and the issues were resolved not by the

3 A floor amendment narrowed this remedies limitation to temporary

relief, thereby permitting a court to void a sale after a trial on the merits. 135 Cong

Rec. $8791 (July 26, 1989).

committees with substantive jurisdiction, but by the appropria-

tions committees, even though the rider had no significant fiscal

consequences. Not only did Congress refuse to adopt any rules of

general applicability, but it simply directed that whatever the

agencies chose to do under the rider would be adequate during

Fiscal Year 1990 for meeting the requirements of the laws that

formed the basis of the existing court challenges. After that fiscal

year, a court could again determine that the very same actions

taken before, after, and possibly even during that year violated the

same governing legal requirements. In other words, Congress

passed a law applicable only to those activities of these two

agencies that had been challenged in two specific cases, and then

only for one fiscal year. In purpose and effect, this rider had no

consequences other than to dictate the result for the pending

lawsuits.

ARGUMENT

The Constitution divided “the delegated powers of the new

Federal Government into three defined categories, Legislative,

Executive, and Judicial, to assure, as nearly as possible, that each

branch of government would confine itself to its assigned

responsibility.” JNS v. Chadha, 462 U.S. 919, 951 (1983). It is “a

general rule inherent in the American constitutional system, that,

unless otherwise expressly provided or incidental to the powers

conferred, the legislature cannot exercise either executive or

judicial power; the executive cannot exercise either legislative or

judicial power; the judiciary cannot exercise either executive or

legislative power.” Springer v. Government of the Philippine

Islands, 277 U.S. 189, 201-02 (1928). Under this doctrine of

separation of powers, “it is a breach of the National fundamental

law ... if by law [Congress] attempts to invest itself or its members

with either executive power or judicial power.” Buckley v. Valeo,

424 US. 1, 121-22 (1976) (per curiam). As this Court has

repeatedly recognized, this doctrine serves “as a self-executing

safeguard against the encroachment or aggrandizement of one

branch at the expense of the other.” /d. at 122; see The Federalist

No. 48, at 308 (E. Earle ed. 1937) (J. Madison) (“none of [the

branches] ought to possess, directly or indirectly, an overruling

influence over the others, in the administration of their respective

powers”).

The Framers were particularly concerned that the Legisla-

tive Branch had the potential power to encroach on the Executive

and Judicial Branches:

Its constitutional powers being at once more extensive,

and less susceptible of precise limits, it can, with greater

facility, mask, under complicated and indirect meas-

ures, the encroachments which it makes on the coordi-

nate departments.

The Federalist No. 48, at 323 (E. Earle ed. 1937) (J. Madison). As

this Court reaffirmed last Term:

To forestall the danger of encroachment “beyond the

legislative sphere,” the Constitution imposes two basic

and related constraints on Congress. It may not “invest

itself or its Members with either executive power or

judicial power.” J.W. Hampton Jr, & Co. v. United

States, 276 U.S. 394 (1928). And, when it exercises its

legislative power, it must follow the “single, finely

wrought and exhaustively considered, procedures”

specified in Article I. JNS v. Chadha, 462 U.S. 919, 951

(1983).

Metropolitan Washington Airports Authority v. Citizens for the

Abatement of Aircraft Noise, 111 S.Ct. 2298, 2311 (1991) (footnote

omitted). Both the separation of powers principle and the

lawmaking requirements of the Bicameralism and Presentment

Clauses serve as affirmative limitations on Congress’s powers, the

former by limiting Congress to lawmaking and related activities,

and the latter by requiring Congress to act in a politically account-

able manner through the constitutionally prescribed lawmaking

process.

In Article III, the Constitution not only assigns the power to

decide cases and controversies to the Judicial Branch, it also

protects the independence of the Judicial Branch to ensure that

such cases and controversies are resolved without interference

from the political branches. Thus, Article II] provides that federal

judges will have life tenure and that their salaries may not be

diminished. In Northern Pipeline Construction Co. v. Marathon

Pipe Line Co., 458 U.S. 50 (1982), this Court emphasized that the

independence of the judiciary must be jealously guarded from

outside interference and held that judges without both life tenure

and protection against salary diminution could not exercise Ar-

ticle III judicial power. Similarly, the Court underscored the

importance of these features of judicial independence in United

States v. Will, 449 U.S. 200, 217-18 (1980), stating that “{a}

Judiciary free from control by the Executive and the Legislature

is essential if there is a right to have claims decided by judges who

are free from potential domination by other branches of govern-

ment.”

The division of responsibility between the Legislative and

Judicial Branches ensures that the political lawmaking branch (in

concert with the President) enacts the laws, but that the nonpoli-

tical, independent Judicial Branch interprets and applies those

laws to the cases and controversies brought by parties to the

courts. Other parts of the Constitution reinforce this balance

between the Legislative and Judicial Branches. Thus, under the

Ex Post Facto Clause, Art. I, § 10, cl. 1, Congress may not enact a

law that retroactively imposes punishment, ie., that changes the

criminal legal consequences of completed acts. The purpose of

this prohibition is to prevent Congress from enacting arbitrary or

vindictive legislation. Miller v. Florida, 482 U.S. 423, 429-30

(1987); Weaver v. Graham, 450 U.S. 24, 29 (1981). Similarly,

under the Due Process Clause, Congress may not arbitrarily or

irrationally make laws retroactively applicable. United States v.

Sperry Corp., 110 S. Ct. 387, 396 (1989); Pension Benefit Guaranty

Corp. v. RA. Gray & Co., 467 U.S. 717, 728-31 (1984); Usery v.

Turner Elkhorn Mining Co. , 428 U.S. 1, 15-17(1976). Likewise, the

Bill of Attainder Clause, Art. I, § 10, cl. 1, prohibits Congress from

legislatively determining guilt and inflicting punishment on an

identifiable individual or group of individuals without the protec-

tions of a judicial trial and the political independence of the

judiciary. Nixon v. Administrator of General Services, 433 U.S. 425,

468-69 (1977); United States v. Lovett, 328 U.S. 303, 315 (1946).

10

This case concerns another such limitation on Congress’s

power to exercise powers more properly assigned to the judiciary:

Congress cannot prescribe the rule of decision for a pending case.

This proscription recognizes that it is the province of the courts to

interpret and apply the law to cases before them. It ensures that

such determinations are not made by politicians, but rather by in-

dependent, impartial judges, and that they are made based on the

evidence before the court, with all of the protections of the judicial!

process.

Several cases of this Court illustrate the limits of Congress's

power to dictate the result in a case. In Pennsylvania v. Wheeling

& Belmont Bridge Co., 54 U.S. (13 How.) 518 (1852), the Court

held that a proposed bridge over the Ohio River was a common

law nuisance because it would have interfered with Congress's

regulation of commerce on the river. Congress then passed a

statute designating the roads leading to the proposed bridge to be

postal roads that cotild not be obstructed. This designation of the

bridge as a postal road, an act traditionally undertaken by Con-

gress, permanently changed the operative legal framework for the

Court’s analysis. Accordingly, in Pennsylvania v. Wheeling &

Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856), which was not

cited by the government here, the Court heid that, under the new

law regulating interstate commerce, the bridge would no longer be

an impermissible obstruction.

In United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), the

Court revisited this issue. An individual sued in the Court of

Claims under an 1863 statute that allowed recovery of property

captured during the Civil War, if the claimant could prove that he

or she had not aided the rebellion. The claimant won the case in

the Court of Claims based on an earlier Supreme Court decision

that a presidential pardon proved conclusively that the pardoned

individual had not assisted the rebellion and was entitled to the

property. See United States v. Padelford, 76 U.S. (9 Wall.) 531

(1870). However, while the case was pending in the Supreme

Court, Congress passed a statute providing that: (1) a pardon

could not used as evidence of the claimant's loyalty in support of

a claim to captured property; (2) a pardon would be conclusive

evidence of any acts of disloyalty recited in it, thereby precluding

11

recovery; and (3) upon proof of a pardon indicating dislovalty, the

jurisdiction of the Court of Claims (and the Supreme Court with

respect to appeals) would cease, and the case would be dismissed.

This Court held that the statute intruded into the judicial

function because “the court is forbidden to give the effect to the

evidence which, in its own judgment, such evidence should have,

and is directed to give it an effect precisely contrary.” 80 U.S. at

147. The Court distinguished Wheeling Bridge because “[n]o

arbitrary rule of decision was prescribed in that case, but the court

was left to apply its ordinary rules to the new circumstances

created by the act.” /d. 146-47.

The Court also held the jurisdictional bar unconstitutional

because it was “founded solely on the application of a rule of

decision, in causes pending prescribed by Congress.” Jd. at 146.

Elaborating on the provision withholding appellate jurisdiction,

the Court noted that it was no more than “a means to an end. Its

great and controlling purpose is to deny to pardons granted by the

President the effect which this Court had adjudged them to have.”

Id. at 145, 146. Because Congress had prescribed a rule of decision

in acase, even though it did so in the guise of its admitted authority

to establish exceptions and regulations to the Supreme Court’s

appcunte jurisdiction, the Court held the statute unconstitu-

tional.

The jurisdictional aspect of the holding in Klein indicates

that this Court has refused to elevate form over substance in

determining whether Congress has usurped the judicial function.

See also United States v. Lovett, 328 U.S. 303, 315 (1946) (emphasis

4 In contrast to the statute at issue in Klein, the Court in Hart v. United

States, 118 U.S. 62 (1886), upheld a statute that prohibited the payment of claims

accruing before a certain date if the claimant had aided the confederacy in the Civil

War. While the statute provided that a pardon did not remove this prohibition, it

was silent as to the effect of a pardon on the merits of the underlying claim. The

Court held that this statute was well within Congress's appropriation power and

that it did not prescribe the effect to be given a pardon in determining the merits

of a particular claim, as the statute in Klein had done, nor did it treat claims based

on pardons differently than others in the class of claims.

12

added) (Bill of Attainder Clause proscribes all legislative acts “no

matter what their form, that apply either to named individuals or

to easily ascertainable members of a group in such a way as to

inflict punishment on them without a judicial trial”). Under Klein,

if Congress cannot affirmatively require the courts to construe the

evidence in a prescribed fashion or to reach a particular outcome

in a pending case, then it cannot accomplish the same result by

limiting the courts’ jurisdiction to decide those particular cases.

This principle also follows from Ex Parte McCardle, 74 U.S.

(7 Wall.) 506 (1869), in which an individual who had been

imprisoned by Reconstruction military authorities brought a

habeas corpus action challenging the constitutionality of the

Reconstruction legislation. The lower court upheld the law, and

McCardle appealed to the Supreme Court under the authority of

an 1867 Act giving the Supreme Court appellate jurisdiction over

habeas corpus matters. While’the case was pending in the Su-

preme Court, Congress repealed the Act authorizing all such

appeals, and the Court dismissed the case for want of appellate

jurisdiction.’ In doing so, the Court distinguished several cases

involving “the exercise of judicial power by the Legislature, or of

legislative interference with courts in the exercising of continuing

jurisdiction.” Jd. at 514, citing De Chastellux v. Fairchild, 15 Pa. 18

(1850) (legislature attempted to exercise judicial power through

a statute granting a new trial to an unsuccessful defendant in a

trespass case); State v. Fleming, 26 Tenn. 152 (1846) (legislature

interfered with judicial function by attempting to make a new law

legalizing liquor sales applicable to pending prosecutions).

What these cases demonstrate is that the government’s

attempt to have the constitutionality of Section 318 turn on

whether the statute uses certain magic words that actually “com-

mand” or “direct” a court to reach a certain result is hypertech-

nical and without constitutional foundation. Pet. Br. at 25, 30. It

5 The statute at issue in McCardle did not eliminate all Supreme Court

consideration of habeas corpus petitions, it simply withdrew the Supreme Court's

appellate jurisdiction, but left its certiorari jurisdiction intact. Ex Parte Yerger, 75

U.S. (7 Wall.) 85 (1869). In addition, the McCardle Court recognized that the lower

courts still could hear such claims. 74 US. at 515.

13

does not matter whether the statute “directs” the court to dismiss

a pending case, “deers” the challenged actions taken by the gov-

ernment to satisfy the underlying statutory requirements, or

removes the court’s jurisdiction to decide the particular case. All

of these approaches are unconstitutional because Congress has,

in essence, prescribed a rule of decision for the pending case.

In this case, there can be no doubt that Congress did just that.

Congress “determine[d] and direct[ed] that management of areas

according to” certain parts of Section 3 18 “is adequate considera-

tion for the purpose of meeting the statutory requirements that

are the basis for the consolidated cases,” which it identified by

caption and docket numer. Section 318 did not replace the re-

quirements of the underlying environmental laws with other

requirements. To the contrary, the conference report makes clear

that “[t}his section in no way alters application of the Endangered

Species Act or other environmental laws to the Forest Service and

BLM management activities.” Opp. Cert. App 122a. There is also

no question that Congress adopted this statute to eliminate the

injunctions that had been issued in these cases. S. Rep. No. 101-

85, 101st Cong., Ist Sess. at 120 (1989) (“The Committee’s

immediate concern is the potential for considerable economic

disruptions which are likely to occur if the injunctions remain in

place”).

This statute crosses the line between permissible lawmaking

and impermissible congressional adjudication of a pending case.

Section 318 directs the courts to resolve two pending cases in favor

of the government and to remove the injunctions on timber sales.

This is its principal purpose, and, if it is constitutional, its principal

effect. It does this by referring to the cases by caption and docket

number, and by directing the courts to find that whatever the

agencies do under Section 318 satisfies the statutory require-

ments that are the bases of the plaintiffs’ challenges in those cases.

The fatal flaw in Section 318 is even more apparent from

what it does not do. It does not establish any rules of general

applicability. Thus, it does not revise the substantive standards of

the National Forest Management Act, 16 U.S.C. §§ 1601 et seq., or

the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701

14

et seq. Nor does it remove the courts’ jurisdiction to decide all

cases arising under the National Environmental Policy Act, 42

U.S.C. §§ 4321 et seg., or any other statute. It likewise does not

change the legal status of the public lands at issue in terms of their

availability for timber sales, for example, by making them Na-

tional Parks or wilderness areas, which would change the under-

lying circumstances much like the designation of the postal roads

did in Wheeling Bridge. Rather than decide whether the legal

obligations imposed by the environmental laws needed to be

altered, whether certain categories of statutory claims should

always be unreviewable in the courts, or whether the tracts at issue

should be redesignated on a permanent basis, with all of the con-

sequences that those determinations would have, Congress crafted

a quick-fix solution that applies to this controversy and this

controversy only, and even then for only one year.

This failure to enact rules of general applicability is signifi-

cant both in terms of the result and the process. In terms of result,

the specific claims in these cases were singled out as ones that

would not be entertained by the courts during the fiscal year, not

because they were based on erroneous legal standards that had

since been changed, but because Congress did not like the result

reached by the courts. This type of individualized lawmaking

would be impermissible in the criminal context under the Bill of

Attainder and Ex Post Facto Clauses, and would be unlikely to

survive the Due Process Clause’s rational purpose test for retro-

active laws. See cases cited supra at 9.

In terms of process, the one-year, localized appropriations

rider, targeted at specific cases, short-circuited the safeguards

built into the lawmaking process. If Congress were to change the

underlying legal obligations of the agencies under the environ-

mental laws or the reviewability of agency actions under such laws

generally, the legislation would go through the congressional

committees with substantive responsibility over the laws and the

agencies. Not only are the committee proceedings public, but the

result -- the development of a general change in the law -- is the

type of legislative action for which Members of Congress are held

politically accountable. In contrast, last-minute appropriations

riders are buried in voluminous budget bills that do not purport to

Ve

15

make substantive law and that are not subject to public hearings

and review by the congressional committees with jurisdiction over

the underlying laws or agencies.

In this case, Congress made no general changes in the

underlying laws. Moreover, as the conference report makes clear,

and as respondents, Seattle Audubon Society et al., point out,

Congress did not even exempt these agencies, this endangered

species, or these timber sales from the underlying environmental

laws. Thus, it did not even purport to make changes in the

underlying laws specific to the matters at issue in these cases. In

our view, such an exemption or limited repealer would also be

unconstitutional, if it were simply a subterfuge for a congression-

ally established rule of decision for a pending case. Such short-

cuts take place largely outside the accountable process of substan-

tive lawmaking and inject Congress into the process of deciding

cases without any of the safeguards of the judicial process.

Finally, it should be noted that the Executive Branch’s

defense of this particular statute is based on political expediency

rather than principle. Cf. Metropolitan Washington Airports Au-

thority, supra. Since Section 318 removed injunctions that were

constraining the federal agencies’ proposed actions, and derailed

lawsuits against the agencies, it is not surprising that the Executive

Branch liked the particular results of Section 318. However, the

next case-specific rider may not be as palatable to the Executive

Branch. Indeed, history shows that the Executive Branch has

taken the opposite position when Congress passed statutes that

allowed claims against the government to be relitigated. See, e.g.,

Pope v. United States, 323 U.S. 1 (1944) (Executive Branch unsuc-

cessfully argued that a statute removing statute of limitations

defense, which had barred a previous claim in court, was an

improper legislative encroachment on the judicial power); United

States v. Sioux Nation of Indians, 448 U.S. 371 (1980) (Executive

Branch challenged statute that removed res judicata defense to

claim previously litigated against it).

Even when the United States is not a defendant in an action

for money damages, the Executive Branch might challenge provi-

sions like Section 318. Thus, the Executive Branch would likely

16

oppose a statute directing the courts to find that a challenged

regulation violated existing law or “deeming” the regulation’s

requirements to violate the law. Or, if a court invalidated an

Executive Branch ban on a particular pesticide, and Members of

Congress from the pesticide manufacturer’s district sponsored a

rider removing the appellate court’s jurisdiction to hear the case,

the Executive Branch might argue that Congress acted unconsti-

tutionally. Likewise, if a court enjoined the Executive Branch

from implementing a policy that limited the reach of a civil rights

statute, and Congress passed a law providing that the injunction

must remain in effect for one year, the Executive Branch would

likely challenge the statute. In each of these situations, the

Executive Branch might argue that such case-specific riders were

congressional usurpations of judicial (and perhaps executive)

power, without drawing any distinctions among the various means

used to dictate the outcome of the case.

Regardless of whether a statute explicitly directs a court to

reach a particular result in a pending case, deems an action to

mean whatever is required to reach that result, or removes the

courts’ jurisdiction over the case, it is a violation of the doctrine

of separation of powers. Accordingly, the court of appeals

correctly found Section 318 unconstitutional.

CONCLUSION

For these reasons, the judgment of the court below should be

affirmed.

acai siaeeacatlaaiaeeai na a

OCTOBER 1991

17

Respectfully submitted,

Patti A. Goldman

(Counsel of Record)

Alan B. Morrison

David C. Vladeck

Public Citizen Litigation Group

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

(202) 833-3000

Attorneys for Amicus Public Citizen