# Appendix — Benjamin v. Kerik > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0470%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1999 - **Citation:** 528 U.S. 824 ## Text la [CORRECTED COPY} UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 1996 (Argued en banc: February 25, 1998 Decided: March 23, 1999) Docket No. 96-7957 JAMES BENJAMIN et al., Plaintiffs-Appellants, —V— MICHAEL JACOBSON, Commissioner of the Department of Correction of the City of New York, et al., Defendants-Appellees. Before: WINTER, Chief Judge, and OAKES, KEARSE, WALKER, MCLAUGHLIN, JACOBS, LEVAL, CALABRESI, CABRANES, and PARKER, Circuit Judges. 2a Rehearing en banc of an appeal from an order of the United States District Court for the Southern District of New York, Harold Baer, Jr., Judge, upholding constitu- tionality of immediate termination provision of Prison Litigation Reform Act of 1995, 18 U.S.C. § 3626(b)(2) (Supp. II 1996), and vacating consent decrees. See 935 F. Supp. 332 (1996). Affirmed as to constitutionality, reversed as to vacatur of consent decrees, and remanded for further proceed- ings to determine whether any forward-looking provi- sions of the consent decrees should be continued. Judge Jacobs concurs in the majority opinion, and files a separate opinion joined by Chief Judge Winter and Judges Kearse, Walker, McLaughlin, Cabranes, and Parker. Judge Leval concurs in all but Part II.A. of the major- ity opinion, and files a separate opinion joined by Judge Oakes and joined in part by Judge Calabresi. Judge Calabresi concurs in the result, and files a sep- arate opinion. JOHN BOSTON, New York, New York (Daniel L. Greenberg, Sarah Kerr, Dori A. Lewis, Marta Nelson, The Legal Aid Society, Prisoners’ Rights Project, New York, New York, on the brief), for Plaintiffs- Appellants. LORNA B. GOODMAN, Assistant Corporation Counsel, New York, New York (Jeffrey D. Friedlander, Acting Corporation Coun- 3a sel of the City of New York, June R. Buch, Laura A. Chamberlain, Florence A. Hutner, Assistant Corporation Counsel, on the brief), for Defendants-Appellees. SARA L. SHUDOFSKY, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, New York, New York, Frank W. Hunger, Assistant Attorney General, Robert M. Loeb, Attorney, Civil Division, Depart- ment of Justice, Washington, D.C., James L. Cott, Assistant United States Attorney, New York, New York, on the brief), for Intervenor United States of America. DENNIS C. VACCO, Attorney General of the State of New York, Albany, New York (Peter H. Schiff, Deputy Solicitor Gen- eral, Martin A. Hotvet, Assistant Attor- ney General, Albany, New York; Bill Pryor, Attorney General, State of Alabama, Montgomery, Alabama; Grant Woods, Attorney General, State of Ari- zona, Phoenix, Arizona; Richard Blu- menthal, Attorney General, State of Connecticut, Hartford, Connecticut; M. Jane Brady, Attorney General, State of Delaware, Wilmington, Delaware; Robert A. Butterworth, Attorney Gen- eral, State of Florida, Tallahassee, . Florida; Thurbert E. Baker, Attorney General, State of Georgia, Atlanta, Georgia; Gus F. Diaz, Acting Attorney 4a General, Territory of Guam, Agana, Guam; Margery S. Bronster, Attorney General, State of Hawaii, Honolulu, Hawaii; James E. Ryan, Attorney Gen- eral, State of Illinois, Chicago, Illinois; Thomas J. Miller, Attorney General, State of Iowa, Des Moines, Iowa; Carla J. Stovall, Attorney General, State of Kansas, Topeka, Kansas; Richard P. Ieyoub, Attorney General, State of Louisiana, Baton Rouge, Louisiana; J. Joseph Curran, Jr., Attorney General, State of Maryland, Baltimore, Maryland; Scott Harshbarger, Attorney General, Commonwealth of Massachusetts, Boston, Massachusetts; Frank J. Kelley, Attorney General, State of Michigan, Lansing, Michigan; Mike Moore, Attor- ney General, State of Mississippi, Jack- son, Mississippi; Joseph P. Mazurek, Attorney General, State of Montana, Helena, Montana; Don Stenberg, Attor- ney General, State of Nebraska, Lincoln, Nebraska; Frankie Sue Del Papa, Attor- ney General, State of Nevada, Carson City, Nevada; Philip T. McLaughlin, Attorney General, State of New Hamp- shire, Concord, New Hampshire; Tom Udall, Attorney General, State of New Mexico, Santa Fe, New Mexico; Beity D. Montgomery, Attorney General, State of Ohio, Columbus, Ohio; D. Michael Fisher, Attorney General, Common- wealth of Pennsylvania, Harrisburg, Pennsylvania; Jeffrey B. Pine, Attorney Sa General, State of Rhode Island, Provi- dence, Rhode Island; Jan Graham, Attor- ney General, State of Utah, Salt Lake City, Utah; Mark F. Earley, Attorney General, Commonwealth of Virginia, Richmond, Virginia; and James E. Doyle, Attorney General, State of Wis- consin, Madison, Wisconsin, of counsel), filed a brief for Amici Curiae States of New York, Alabama, Arizona, Connecti- cut, Delaware,~ Florida, Georgia, Hawaii, Illinois, lowa, Kansas, Louisiana, Maryland, Michigan, Mis- sissippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, Ohio, Rhode Island, Utah, and Wisconsin, the Commonwealths of Massachusetts, Pennsylvania, and Virginia, and the Ter- ritory of Guam, in support of Defen- dants-Appellees. KEARSE, Circuit Judge, with whom Chief Judge WINTER, and Judges WALKER, MCLAUGHLIN, JACOBS, CABRANES, and PARKER join, and with whom Judges OAKES and LEVAL join except for Part II.A.: Plaintiffs James Benjamin et al., who are pretrial detainees, appealed from an order of the United States District Court for the Southern District of New York, Harold Baer, Jr., Judge, entered pursuant to the Prison Litigation Reform Act of 1995 (“PLRA” or the “Act’”), Pub L. No. 104-134, 110 Stat. 1321-66 §§ 801-810 (1996), codified at 18 U.S.C. § 3626 (Supp. II 1996); see 6a also 18 U.S.C.A. §§ 3626(b)(3), (e)(2), (e)(3) (West Supp. 1998), vacating certain consent decrees entered in 1978 and 1979 (the “Consent Decrees” or the “Decrees’”’) in actions brought by classes of pretrial detainees against defendant officials of the City of New York (collectively the “City”) to challenge the conditions of confinement of persons held in City institutions awaiting trial or other disposition of criminal charges. The district court rejected plaintiffs’ challenges to the constitutionality of the PLRA’s provision requiring the termination of con- sent decrees not meeting criteria set by the Act, vacated the Consent Decrees, and dissolved the injunctions that had been entered pursuant to the Decrees. See Benjamin v. Jacobson, 935 F. Supp. 332 (1996) (“Benjamin I’). A unanimous panel of this Court upheld the district court’s rejection of the constitutional challenges but reversed the vacatur of the Decrees, ruling that the Act does not call for the termination of consent decrees not meeting the requirements of the Act, but merely limits the power of federal courts to enforce those decrees and leaves the decrees intact and enforceable in state courts. See Ben- jamin v. Jacobson, 124 F.3d 162 (1997) (“Benjamin IT’). On en banc reconsideration, we conclude that the PLRA requires the termination of consent decrees that do not meet the criteria established by the Act; that that pro- vision does not violate the constitutional principle of separation of powers or infringe the due process, equal protection, and other constitutional rights invoked by plaintiffs; and that plaintiffs should be afforded an opportunity to show that, under the Act’s criteria, the continuation of prospective relief is warranted. We therefore vacate the decision of the panel; we affirm in part and reverse in part the order of the district court and remand for further proceedings. Ta I. BACKGROUND This action comprises seven related class actions brought during the mid-1970s by pretrial detainees in certain New York City jails, alleging that conditions of their confinement violated their constitutional rights. See Benjamin v. Malcolm, 75 Civ. 3073 (S.D.N.Y.) (Rikers Island House of Detention for Men, now called the James A. Thomas Center); Forts v. Malcolm, 76 Civ. 101 (S.D.N.Y.) (Rikers Island Correctional Institution for Women, now called the Rose M. Singer Center); Ambrose v. Malcolm, 76 Civ. 190 (S.D.N.Y.) (Bronx House of Detention for Men); Maldonado v. Ciuros, 76 Civ. 2854 (S.D.N.Y.) (Rikers Island Adolescent Recep- tion and Detention Center); Detainees of the Brooklyn House of Detention for Men v. Malcolm, 79 Civ. 4913 (E.D.N.Y.); Detainees of the Queens House of Detention for Men v. Malcolm, 79 Civ. 4914 (E.D.N.Y.); Rosenthal v. Malcolm, 74 Civ. 4854 (S.D.N.Y.) (Rikers Island Adult Mental Health Unit). The Consent Decrees were designed “to ensure that prison conditions became and remained safe and humane.” Benjamin I, 935 F. Supp. at 337. The Decrees, inter alia, ensure that detainee mail and property are handled properly, and that procedures in concert with con- stitutional protections are followed during detainee cell and body searches. On an institutional level, the Consent Decrees seek to maintain the physical plant of the jails in a condition safe for human habitation. They mandate that attention be given to vermin and insect control, sanitation, maintenance and refuse removal. Other provisions govern food services to the detainees and ensure that the detainees are ade- quately fed while in custody, with food that is pre- pared and served in a sanitary environment. 8a Id. As noted in Benjamin II, “[t]hese decrees have gen- erated a judicially administered structure comprising over ninety related court orders and extending to more than thirty discrete areas of prison administration.” 124 F.3d at 165. A. The PLRA and the Proceedings in the District Court Effective April 26, 1996, Congress enacted the PLRA which, inter alia, provides that in civil actions arising under federal law challenging conditions in prisons (including pretrial detention facilities) “prospective relief” may not be granted in the absence of certain find- ings: [p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a)(1)(A). With respect to judgments entered prior to the effective date of the PLRA, the Act provides for the termination of prospective relief that was ordered without the court having made these find- ings as to need, narrowness, and intrusiveness: IMMEDIATE TERMINATION OF PROSPECTIVE RELIEF.—In any civil action with respect to prison Oe ee ee ee 9a conditions, a defendant or intervener shall be enti- tled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is - the least intrusive means necessary to correct the violation of the Federal right. Id. § 3626(b)(2) (“termination provision”). However, the Act provides that even if the need-narrowness-intru- siveness findings had not been made in connection with the entry of the decree, the prospective relief is not to be terminated if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing viviation of the Fed- eral right, extends no further than necessary to cor- rect the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation. 18 U.S.C.A. § 3626(b)(3) (West Supp. 1998), as amended and made applicable to all pending cases, see Pub. L. No. 105-119, § 123(a)(2) & (b), 111 Stat. 2440, 2470 (Nov. 26, 1997) (changing “current or ongoing” to “current and ongoing”). In the Act, “the term ‘prospective relief’ ” is defined to “mean J all relief other than compensatory monetary damages,” 18 U.S.C. § 3626(g)(7), and “ ‘relief’ means all relief in any form that may be granted or approved by the court, and includes consent decrees but does not include private settlement agreements,” id. § 3626(g)(9). The term “private settlement agreement” is defined to “mean[ ] an agreement entered into among the parties 10a that is not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement settled,” id. § 3626(g)(6); the term “consent decree” is defined to “mean|[ ] any relief entered by the court that is based in whole or in part upon the consent or acquies- cence of the parties but does not include private settle- ment agreements,” id. § 3626(g)(1). Shortly after the PLRA’s effective date, the City moved fcr the immediate termination of the Consent Decrees and related orders on the ground that the Decrees had been entered without the need-narrowness- intrusiveness findings required by the PLRA. Plaintiffs conceded that no such findings had been made and that the requisite findings would not be supported by the record in its present state; but they challenged the con- stitutionality of the Act as applied to existing consent decrees, arguing principally that it violates the consti- tutional principle of separation of powers and denies them equal protection and due process. In support of their separation of powers contention, plaintiffs argued that the Act requires the reopening of final judgments and thereby exceeds Congress’s power as elucidated in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (“Plaut”), and impermissibly prescribes a rule of deci- sion without changing the underlying substantive law, contrary to the principle established in United States v. Klein, 80 U.S. (13 Wall.) 128 (1872). They also argued that the Act impermissibly deprives the federal courts of their Article III power to remedy violations of consti- tutional rights. Plaintiffs requested an opportunity, if the court rejected their constitutional arguments, to create a factual record as to the current conditions in City deten- tion facilities in order to permit the court to make the findings required by 18 U.S.C.A. § 3626(b)(3) (West lla Supp. 1998) for the continuation of the injunctive relief granted by the Consent Decrees. The United States inter- vened in the action in order to defend the constitution- ality of the Act. See 28 U.S.C. § 2403(a). In Benjamin I, the district court upheld the constitu- tionality of the Act’s termination provision and granted the City’s motion. See 935 F. Supp. at 358. The court reasoned that the Act does not violate the principle bar- ring Congress from reopening final judgments because a consent decree calling for continued compliance with prescribed standards is not a final judgment in the same sense in which a judgment for monetary relief would be final: Where the suit is an action at law for damages and the judgment has become final for res judicata pur- poses, the judgment is no longer subject to con- gressional enactments. See Plaut, [514 U-S. at 225-26]. Where the judgment imposes an executory decree, though, and the court retains supervisory jurisdiction, the judgment’s prospective effects are not final for separation-of-powers purposes. Benjamin I, 935 F. Supp. at 345. The district court viewed “the Consent Decrees [as] executory judgments with prospective effects,” and noted that they “impose[d] injunctive relief over which this Court has retained Supervisory jurisdiction.” Jd. at 347. The court con- cluded that the Decrees were subject to alteration by Congress without infringing the principle announced by Plaut. The district court also found no violation of the prin- ciple enunciated in United States v. Klein. It reasoned that “while Congress did not amend the substantive law with respect to permissible prison conditions,” it also did 12a not prescribe a substantive rule of decision but merely “change[d] the law governing the district court’s reme- dial powers.” Benjamin I, 935 F. Supp. at 350. The court also rejected the suggestion that the PLRA prevented the courts from effectively remedying violations of consti- tutional rights. It observed that the Act allows the courts, on the condition that they make the requisite findings as to relief, to “continue to define the scope of prisoners’ constitutional rights, review the factual record, apply the judicially determined constitutional standards to the facts as they are found in the record and determine what relief is necessary to remedy the constitutional viola- tions.” Jd. at 351. The district court rejected plaintiffs’ due process argu- ments, reasoning that because the Consent Decrees were not “final” with respect to future conditions, plaintiffs had no vested rights in their continued enforcement. See id. at 356. The court rejected the equal protection argu- ments, noting that prisoners are not a suspect class and Stating, inter alia, that the Act was “supported by plau- sible legitimate government interests and the means cho- sen to advance these goals are rationally designed.” Jd. at 354. The court also denied plaintiffs’ request for an oppor- tunity to present evidence as to the need for continuation of the prospective relief provided for in the Decrees. It stated that “[t]he statute provides for ‘immediate ter- mination’ and based on the current record before the Court, the defendants are entitled to vacatur of the Con- sent Decrees.” Jd. at 357. The court entered an order Stating that “the Consent Decrees in these cases are VACATED pursuant to 18 U.S.C. § 3626(b)(2).” 935 F. Supp. at 358. 13a Plaintiffs promptly asked the court to, inter alia, rescind its vacatur of the Consent Decrees pending a hearing as to the existence of continuing violations. They argued that because of the course, complexity, and time-pressures of the litigation, they had not had an opportunity to present such evidence. In the alternative, plaintiffs asked the court to certify questions of the Act’s interpretation and constitutionality for an immediate appeal and to stay its ruling pending appeal. The court denied the motions for rescission and a hearing but granted the motion for a stay until such time as a stay pending appeal could be sought from this Court. Plaintiffs promptly appealed, and this Court granted motions for an expedited appeal and a stay. B. The Panel Decision Plaintiffs pursued their constitutional challenges to the PLRA on appeal. In Benjamin II, the panel unanimously affirmed the district court’s rejection of the constitu- tional challenges to the termination provision, albeit on different reasoning, and it reversed the vacatur of the Consent Decrees. The panel based its conclusions on its view that the Act does not require the termination of con- sent decrees entered without the mandated need-narrow- ness-intrusiveness findings; rather the panel concluded that the Act merely prohibits federal courts from enforc- ing such decrees and leaves parties free to seek enforce- ment of the consent decrees in state courts. The panel began by noting that the PLRA had been enacted in part to answer the criticism that federal courts had overstepped their authority in the context of prison litigation. After quoting § 3626(b)(2)’s provision for “the immediate termination of any prospective relief if the relief was approved or granted in the absence of” the l4a specified need-narrowness-intrusiveness findings, the panel stated as follows: This language can be read in either one of two ways, each of which, if constitutionally valid, would respond to the criticisms that led to the PLRA. The first interpretation would limit the jurisdiction of federal courts so that these courts could not in the future enforce past consent decrees, except insofar as the decrees were found to be tailored to a federal right. The second would render null and void all past federally approved prison consent decrees unless these decrees met the requirement of being narrowly tailored to a federal right. The correct reading of the section turns on the meaning of the words “termination of prospective relief.” If “prospective relief” includes the past Decrees themselves, then these are terminated and annulled under the law. If, instead, “termination of prospective relief” means that no future relief—that is neither future enforcement nor articulation—is available in federal courts under past Decrees, then the Decrees remain valid, but no longer subject to federal jurisdiction. At a glance, the second interpretation seems plau- sible. The statute defines “prospective relief” as “all relief other than compensatory monetary damages.” 18 U.S.C. § 3626(g)(7). It also states that “the term ‘relief’ means all relief in any form that may be granted or approved by the court, and includes consent decrees but does not include private settlement agreements.” 18 U.S.C. § 3626(g)(9) (emphasis added). One could, therefore, maintain that “prospective relief” includes the Decrees because (1) “prospective relief” includes all relief lSa except damages, (2) “relief” includes “consent decrees,” and (3) consent decrees are not damages. But, in fact, such a reading has significant lin- guistic problems. Taken literally, it would imply that the word “relief,” without more, includes within it “private settlement agreements.” Yet it would be a remarkable twisting of language to describe a contract or an agreement as a form of relief. We simply do not talk that way. The ordinary way of talking and writing is to speak of relief available under or pursuant to a private settlement agreement. Since it is clear that private settlement agreements are not a form of relief, why does the definition expressly exclude them? Under the cir- cumstances, it makes more sense to read the defi- nitional phrase as saying “the term ‘relief’ means all relief in any form that may be granted or approved by the court, and includes [all relief granted pur- suant to] consent decrees but does not include [relief granted pursuant to] private settlement agree- ments.” While one can define anything to mean anything, courts should be reluctant to read a defi- nitional sentence to mean something that makes another part of the same sentence meaningless or completely superfluous. 124 F.3d at 166-67 (emphases and brackets in original). The panel found that its second hypothesized interpre- tation (i.e., that the Act requires annulment of past federal consent decrees not narrowly tailored to the vin- dication of a federal right) created serious separation of powers problems, for “[uJnder the second interpretation, the termination provision will strip the plaintiffs of all of the protections they negotiated into the Consent Decrees 16a except for those narrowly tailored to federal rights.” /d. at 168. Instead, reasoning that “federal consent decrees are not only federal court judgments but also, and sepa- rately, contracts arising under state law,” the panel adopted its first interpretation (i.e., that the PLRA sim- ply eliminates the federal courts’ enforcement jurisdic- tion), concluding that the “underlying contract, in its time made into a judgment, is left untouched.” /d. at 178. The panel concluded that the PLRA “simply force[s] the plaintiffs to seek redress for the non-federal aspects of the Decrees in state court as opposed to fed- eral court.” Jd. at 168. The panel also concluded that in light of its interpre- tation that the Act “does not annul the underlying Decrees, but, instead, only changes the forum in which they can be enforced,” id. at 174, plaintiffs’ constitutional challenges should be rejected. See, e.g., id. at 170, 173, 174, 176-77 (separation of powers); id. at 176 (due pro- cess); id. at 177 n.18 (due process and equal protection). In sum, the panel concluded that “the non-federal aspects of the Consent Decrees are hereafter not to be enforced by the federal courts,” but that the plaintiffs “should be able to get all the relief from state courts, including specific performance, that had previously been available to them federally under the Consent Decrees.” Id. at 178. “[W]hile the defendants may be entitled to immediate termination of prospective relief from the fed- eral courts, there is nothing to prevent the plaintiffs from seeking the enforcement of the Consent Decrees in state courts.” Id. at 165 (emphases in original). In light of its conclusion that prospective relief entered without the required need-narrowness-intrusiveness findings need not be terminated, and that the Act merely requires 17a that enforcement of that relief be sought in state court, the panel reversed the district court’s vacatur of these Consent Decrees and ruled that plaintiffs are entitled, at their option, to have an evidentiary hearing in the dis- trict court on their allegations of current and ongoing violations of federal rights or to “seek enforcement of the Decrees in their entirety in state court.” Jd. at 180. C. Rehearing En Banc The City petitioned for rehearing, with a suggestion for rehearing en banc, arguing principally that the panel had misinterpreted the PLRA, and in doing so had “viti- ate[d] the redress that Congress sought to provide to overburdened states and municipalities by transforming a statute intended to protect defendants from extra-con- stitutional burdens into one that ensures the perpetuation of those burdens via the state courts.” (City Petition for Rehearing at 3.) In December 1997, we agreed to rehear the appeal en banc. On rehearing, plaintiffs contend principally (1) that Benjamin II’s construction of the PLRA as terminating only the Decrees’ enforceability in federal, not state, court, was correct, and (2) that this Court should nonetheless conclude that the Act’s termination provi- sion violates Article III of the Constitution and the prin- ciple of separation of powers, and that application of the termination provision to the Decrees denies them due process and equal protection. They also urge, if the Act’s termination provision is upheld, that they be given a meaningful opportunity to present evidence to the dis- trict court that the Decrees should be continued. The City disagrees with Benjamin II’s interpretation of the PLRA. It argues that the district court’s decision upholding the constitutionality of the PLRA and vacat- 18a ing the Decrees was correct, and it urges that the order of the district court be affirmed. The State of New York has filed a brief on behalf of itself and numerous other States as amici curiae, supporting the position of the City. The United States, as intervenor, has filed a brief arguing that the Act is not unconstitutional, that the panel opinion in Benjamin II should be reversed to the extent that it does not uphold the PLRA as written, and that the matter should be remanded to the district court for further proceedings to determine the need for con- tinuation of the future relief ordered in the Decrees. For the reasons that follow, we conclude that the Act provides for the termination, though not the annulment, of consent decrees that do not meet the need-narrowness- intrusiveness criteria established by the Act; that plain- tiffs’ constitutional challenges to the termination pro- vision were properly rejected; and that plaintiffs were entitled to an opportunity to show, in accordance with the Act, that any or all of the prospective relief ordered by the Decrees should be continued. We therefore vacate the panel decision, affirm the district court’s rejection of plaintiffs’ constitutional challenges, reverse the district court’s vacatur of the Consent Decrees, and remand for further proceedings. Il. INTERPRETATION OF THE PLRA A. The Scope of the PLRA’s Termination Provisions The PLRA sets limitations on, inter alia, the power of the courts to continue certain forward-looking relief in civil actions challenging conditions in prisons or pre- trial detention facilities. It provides, in pertinent part, as follows: 19a (b) TERMINATION OF RELIEF. — (2) IMMEDIATE TERMINATION OF PROSPEC- TIVE RELIEF.—In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. (3) LIMITATION.—Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains nec- essary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation. (c) SETTLEMENTS .— (1) CONSENT DECREES.—In any civil action with respect to prison conditions, the court shall not enter or approve a consent decree unless it complies with the limitations on relief set forth in subsection (a). (2) PRIVATE SETTLEMENT AGREEMENTS.— (A) Nothing in this section shall preclude parties from entering into a private settlement agreement that does not comply with the limitations on relief set forth in subsection (a), if the terms of that agree- 20a ment are not subject to court enforcement other than the reinstatement of the civil proceeding that the agreement settled. (B) Nothing in this section shall preclude any party claiming that a private settlement agreement has been breached from seeking in State court any remedy available under State law. 18 U.S.C. §§ 3626(b)(2), (c); 18 U.S.C.A. § 3626(b)(3) (West Supp. 1998). The most pertinent terms used in these provisions are defined in the Act as follows: (1) the term “consent decree” means any relief entered by the court that is based in whole or in part upon the consent or acquiescence of the parties but does not include private settlements; (5) the term “prison” means any Federal, State, or local facility that incarcerates or detains juveniles or adults accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law; (6) the term “private settlement agreement” means an agreement entered into among the parties that is not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement settled; (7) the term “prospective relief” means all relief other than compensatory monetary damages; (9) the term “relief” means all relief in any form that may be granted or approved by the court, and ns 2la includes consent decrees but does not include pri- vate settlement agreements. 18 U.S.C. §§ 3626(g)(1), (5), (6), (7), (9). In interpreting a Congressional enactment, we gener- ally assume that the ordinary meaning of language used in the statute accurately expresses Congress’s purpose, unless the statute contains a contrary indication. See, e.g., FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990). If the statute includes an explicit Statutory definition, we accord that definition controlling weight, see, e.g., Meese v. Keene, 481 U.S. 465, 484 (1987), even if it varies from common usage, see, e.g., Western Union Telegraph Co. v. Lenroot, 323 U.S. 490, 502 (1945). The PLRA’s termination provision affects only “prospective relief.” In order to determine whether that provision is meant to be applied to consent decrees, therefore, we look to the Act’s explicit definition of prospective relief and, as necessary, to the definitions of the terms to which that definition refers. The definition of “prospective relief” does not refer in haec verba to consent decrees but states simply that prospective relief is any “relief” other than compensatory monetary dam- ages. The definition of relief, however, expressly “includes consent decrees.” 18 U.S.C. § 3626(g)(9). This inclusion is reinforced by the definition of the term “consent decree” itself, which “means [consensual court- ordered] relief.” Jd. § 3626(g)(1). These definitions make it doubly plain that a consent decree, to the extent that it awards a remedy other than compensatory monetary damages, constitutes prospective relief within the mean- ing of the Act. We thus conclude that the termination Provision applies to consent decrees. 22a The Benjamin I] panel reached the opposite conclu- sion principally because the definition of “relief” also expressly excludes “private settlement agreements,” an exclusion the panel found superfluous because one does not ordinarily characterize an agreement as relief. We Share the panel’s view that this is not a natural charac- terization; nor do we think it entirely natural to charac- terize a consent decree itself, as contrasted with the decretal provisions it contains, as relief. The awkward- ness in this instance does not, however, obscure Congress’s intent. In defining relief to exclude private settlement agreements (i.e., agreements that are not sub- ject to court enforcement other than the reinstatement of the civil proceeding that the agreement settled), Congress simply excluded those agreements from the governmental obligations that must be based on need- narrowness-intrusiveness findings, and hence preserved them from termination. Congress may, of course, choose to formulate its enactments in any of a number of ways. It might, for example, state in haec verba that “A, B, C, and D are prohibited.” Or it might state simply that “X is prohib- ited,” and define “X” to mean “A, B, C, or D.” The scope of both statutory prohibitions would be the same. Congress’s selection of the definitional structure for the PLRA, stating that the court must terminate “prospective relief” not supported or supportable by need-narrowness- intrusiveness findings, and defining prospective relief to include consent decrees but to exclude private settlement agreements, is the equivalent of a provision stating that the court is to terminate consent decrees as to which need-narrowness-intrusiveness findings have not been and cannot be made, but it is not to terminate private set- tlement agreements even if such findings could not be ss — 23a made. We think it clear from the Statutory terms distin- guishing between consent decrees and private settlement agreements that Congress intended to free governments from judicial constraints not based on need-narrowness- intrusiveness findings, but not to relieve them of their private contractual obligations—however broad—that are not judicially ordered. We do not see any basis for inferring that Congress meant federal consent decrees that are not based on need-narrowness-intrusiveness findings to remain in effect and amenable to enforcement in state courts. It seems implausible that Congress meant to forbid a fed- eral court to enforce these federal judgments but to allow them to be enforceable in a state court. and the language of the Act is contrary to any suggestion that a decree not supported by the mandated findings is to be allowed to remain in effect. Although the word “termi- nation” is not defined in the Act, its ordinary meaning is the antithesis of continuation. We also note our disagreement with the Benjamin II panel’s view that federal consent decrees not supported by the mandated findings remain enforceable in state courts on the theory that settlement agreements are both private agreements and consent decrees. An agreement leading to a consent decree is normally conditional, set- ting out actions and forbearances to which the defendant agrees and stating that the settlement is conditioned on being so-ordered by the court. See, e.g., Benjamin vy. Malcolm, 75 Civ. 3073 (S.D.N.Y. Nov. 29, 1978) (Stip- ulation for Entry of Partial Final Judgment at 1 (“IT IS HEREBY STIPULATED by and between the undersigned attorneys for the plaintiffs and the defendants herein, and subject to approval by the Court” (emphasis added))). A plaintiff willing to settle constitutional 24a claims by way of a consent decree seeks the assurance that, if the defendant fails to fulfill its agreed obliga- tions, those obligations will be enforceable through the court’s exercise of its contempt power. We are not aware of any practice whereby the plaintiffs, especially in insti- tutional litigation involving constitutional claims for injunctive relief, agree to a consent decree and also agree—either in the same document or in a separate doc- ument—to give up their claims unconditionally in exchange for undertakings by the defendants that would not be enforceable except through the commencement of a new lawsuit for breach of contract. Where the parties have made an agreement to settle conditional on approval by the federal court, there is no enforceable agreement if the condition fails. The parties may of course enter into an agreement that is not con- ditioned on such approval, but that would be a different agreement from an accord envisioning a consent decree. The court’s approval of any judgment, whether litigated or consensual, is of course subject to change if the con- ditions underlying the judgment change. See, e.g., Sys- tem Federation No. 91, Railway Employes’ Department, AFL-CIO v. Wright, 364 U.S. 642, 647 (1961) (“System Federation”) (“court will not continue to exercise its powers [ Junder [a consent decree] when a change in law or facts has made inequitable what was once equitable”); Fed. R. Civ. P. 60(b)(5) (“court may relieve a party . from a final judgment ... {on a showing that] . it is no longer equitable that the judgment should have prospective application”).* And if the federal a So far as we are aware, none of the consent decrees at issue in the present cases contains any concessions of federal rights by class rep- resentatives for the prisoners. If there were such concessions, the district court would have the power to relieve the parties if such concessions became inequitable. ee a a ee ne se 25a court, though having once approved, withdraws its approval and terminates prospective relief, the condition upon which the parties agreed to bind themselves will] have failed. In such circumstances, we see no basis, con- sistent with fundamental principles of contract law or with the Supremacy Clause of the Constitution, on which a state court would have the power to reinstate obliga- tions Originally imposed in the federal consent decree but terminated by the federal court. Nor, given the Act’s definitions, does it appear that Congress thought federal consent decrees would simul- taneously be private settlement agreements. A consent decree is defined as relief “entered by the court,” 18 U.S.C. § 3626(g)(1), and it is well established that a fed- eral court ordinarily has the power to enforce its own orders and judgments, see, e.g., Peacock v. Thomas, 516 U.S. 349, 356-57 (1996); Shillitani v. United States. 384 U.S. 364, 370 (1966). A private settlement agreement, in contrast, is defined as relief that is “not subject to judi- cial enforcement.” 18 U.S.C. § 3626(g)(6). Given these definitions, it appears that Congress sought to make the Act's concepts of consent decrees and private settlement agreements mutually exclusive. We note also that the Act, in contrasting the treatment to be given to private settlement agreements, specifies that those agreements are enforceabie “in State court.” Id. § 3626(c)(2)(B). The absence of any similar state- ment indicating state-court enforceability of federal con- sent decrees reinforces our view that Congress meant the Act to require the termination of consent decrees that are not supportable by need-narrowness-intrusiveness find- ings and not simply to make such decrees unenforceable by federal courts but enforceable by state courts. Cer- tainly given the goal of relieving governmental entities 26a - of judicially ordered burdens that “extend. . . further than necessary” to remedy a federal violation, id. § 3626(a)(1)(A), it would seem anomalous for Congress simply to transfer judicial enforcement of unnecessary relief from one forum to another. In sum, the Act explicitly requires the “immediate ter- mination of any prospective relief” that was approved or granted in the absence of the specified need-narrowness- intrusiveness findings. Jd. § 3626(b)(2). Since prospec- tive relief, under the set of definitions provided in the Act, includes a consent decree to the extent that the decree does not award compensatory monetary damages, we think it clear from the statute itself that, if those find- ings were not made in connection with the entry of the decree, see id., and if the court does not proceed to make the requisite findings that prospective relief remains nec- essary to correct a current and ongoing violation of a federal right, see 18 U.S.C.A. § 3626(b)(3) (West Supp. 1998), the Act requires the termination of such a consent decree. Although we view the language of the Act as suffi- ciently clear not to require resort to legislative history for explanation, see, e.g., Blum v. Stenson, 465 U.S. 886, 896 (1984) (in resolving question of Congress’s intent, “we look first to the statutory language and then to the legislative history if the statutory language is unclear’), we note that the history of the Act confirms our inter- pretation that the Act calls for the termination of consent decrees that lack the requisite need-narrowness-intru- siveness foundation. A Congressional conference report describing the termination provision of a predecessor bill that was virtually identical to the termination pro- vision that was eventually included in the PLRA stated that “/p/Jrior consent decrees are made terminable upon 27a the motion of either party, and can be continued only if the court finds that the imposed relief is necessary to correct the violation of the federal right.” H.R. Conf. Rep. No. 104-378, at 166 (1995) (emphasis added). Sim- ilarly, an earlier predecessor bill, H.R. 667, 104th Cong. (1995), would have required the immediate termination of any prospective relief and defined “relief” to include consent decrees. The House of Representatives Judiciary Committee Report on H.R. 667 stated that the termina- tion provision “allows a jurisdiction that is already sub- ject to an existing federal consent decree that was entered with no finding of any constitutional violation. to move to terminate that decree.” H.R. Rep. No. 104- 21, at 26 (1995) (“House Report”) (emphasis added). The House Report also explained that the relevant sec- tion would limit[ ] the remedial scheme a court may order or approve to the least intrusive remedy. . . . [and would] reasonably and permissibly limit[ ] the use of court-enforced consent decrees to resolve prison conditions suits, while freely allowing the use of private settlement agreements. Id. at 24-25. In sum, we agree with the conclusions of the First Cir- cuit in Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (Ist Cir. 1997), cert. denied, 118 S. Ct. 2366 (1998), that although the definition of consent decrees as “relief” “contradicts conventional” usage, the Act, when “[r]ead literally, . . . requires termination of the consent decree itself,” id. at 654, and that the language of the Act, read literally, accurately reflects the intent of Congress. Accordingly, we reject the Benjamin I panel’s view that the Act does not require that consent decrees unsup- 28a portable by need-narrowness-intrusiveness findings be terminated. B. The Meaning of “Termination” We also, however, reject the view of the district court that, if a consent decree was entered without the requi- site need-narrowness-intrusiveness findings, the Act requires that the decree be vacated. The Act states that such decrees are to be “terminat[ed]”; it does not speak of vacatur or use the term “vacate.” There is a poten- tially significant difference between the terms, and we see no basis for assuming that Congress thought the two interchangeable. As the First Circuit observed, Nothing in the PLRA or its legislative history speaks of vacating consent decrees. Congress chose to use the verb “terminate” and to eschew the verb “vacate.” The distinction between these two words is clear: “terminate” means “to put an end to” or “to end,” Black’s Law Dictionary at 1471 [(6th ed. 1990)], whereas “vacate” means “to annul” or “to render. . . void,” id. at 1548. In the present context, this distinction may well possess practical significance. . . . While termi- nating a consent decree strips it of future potency, the decree’s past puissance is preserved and certain of its collateral effects may endure. Vacating a con- sent decree, however, wipes the slate clean, not only rendering the decree sterile for future purposes, but also eviscerating any collateral effects and, indeed, casting a shadow on past actions taken under the decree’s imprimatur. . . . [NJothing in the PLRA even hints that consent decrees must be vacated when prospective relief is terminated . 29a Inmates of Suffolk County Jail v. Rouse, 129 F.3d at 662. We likewise see no indication in the Act itself or in its legislative history that Congress meant past consent decrees to be annulled and Stripped of all past signifi- cance or collateral effect. Accordingly, we conclude that the Act requires only that consent decrees not support- able by need-narrowness-intrusiveness findings be ter- minated, not vacated. il. THE CONSTITUTIONAL CHALLENGES Plaintiffs contend that when the Act is read to require termination of consent decrees, it is unconstitutional in several respects. They contend principally that the ter- mination provision violates the separation of powers principle of the Constitution by requiring the courts to reopen final judgments and violates Article III by strip- ping the courts of their power and duty to fashion ade- quate remedies in constitutional cases. We note that plaintiffs have not, in this en banc rehearing, renewed their contention that the termination provision violates the principle enunciated in United States y. Klein; accordingly, that contention is no longer before this Court. Plaintiffs also argue that the application of the Act’s termination provision to the Decrees would violate their rights to due process and equal protection. We reject all of their contentions. A. Separation of Powers The Constitutional principle of separation of powers protects each of the three Branches of the federal gov- ernment from encroachment by either of the other Branches. Article III of the Constitution “establishes a ‘judicial department’ with the ‘province and duty . 30a to say what the law is’ in particular cases and contro- versies.” Plaut, 514 U.S. at 218 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). The sep- aration of powers “serves both to protect the role of the independent judiciary within the constitutional scheme of tripartite government, . . . and to safeguard litigants’ right to have claims decided before judges who are free from potential domination by other branches of gov- ernment.” Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 848 (1986) (internal quotation marks omitted). In Plaut, the Supreme Court established that one facet of the separation of powers principle prevents Congress from requiring the courts to reopen final judgments. At issue in Plaut was a then-recently-enacted statutory pro- vision dealing with statutes of limitations in civil actions brought to enforce the federal securities laws. The Plaut plaintiffs had previously commenced a federal securities fraud action seeking money damages; when commenced, their action was timely under the then-applicable statute of limitations. While their suit was pending, however, the Supreme Court in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364 (1991), ruled that such actions were subject to a shorter limitations period. Under that ruling, the Plaut plaintiffs’ claims were dismissed as time-barred; the plaintiffs did not appeal, and the judgment dismissing their case became final. Thereafter, Congress passed a statute purporting to reinstate actions that had been dismissed under Lampf but that would haye been timely had the prior limitations period been applied. The Court ruled that because the dismissal of the Plaut plaintiffs’ action had become final before the new legislation went into effect, Congress had “exceeded its ES a a tas NT late tl AS ale i anh, apatvilie nda ll: — a ee ee 3la authority by requiring the federal courts to exercise [t]he judicial Power. . . in a manner repugnant to the text, structure and traditions of Article III.” Plaut, 514 U.S. at 217-18 (internal quotation marks omitted). The Court Stated that Article III gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierar- chy—with an understanding, in short, that “a judg- ment conclusively resolves the case” because “a ‘judicial Power’ is one to render dispositive judg- ments.” Easterbrook, Presidential Review, 40 Case W.Res.L.Rev. 905, 926 (1990). By retroactively commanding the federal courts to reopen final judg- ments, Congress . . . violate[s] this fundamental principle. Plaut, 514 U.S. at 218-19. Having achieved finality, . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was some- thing other than what the courts said it was. Id. at 227 (emphasis in Original). “Finality,” however, may be defined differently for different purposes, and the Plaut Court distinguished the judgment at issue before it, which dismissed a complaint seeking money damages, from other types of judgments. Making particular reference to the decision in Pennsyl- vania v. Wheeling and Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856) (“Wheeling Bridge IT’), see also Pennsylvania vy. Wheeling and Belmont Bridge Co., 54 U.S. (13 How.) 518 (1852) (“Wheeling Bridge I’), the 32a Plaut Court noted that a separation of powers contention had been rejected to the extent that challenged legisla- tion had “altered the prospective effect of injunctions,” 514 U.S. at 232. In Wheeling Bridge J, the Supreme Court had ruled that a bridge across the Ohio River was so low as to obstruct navigation, in violation of then- existing federal law, and the Court entered an injunction ordering the bridge elevated or abated. See Wheeling Bridge 1, 54 U.S. at 521, 626. Thereafter, Congress enacted a statute declaring the bridge a lawful structure, designating it a post-road for carriage of the mails, and authorizing the bridge’s owner to maintain the bridge at its then-present height. Subsequently, after the bridge had been destroyed by a storm, Pennsylvania sought to enjoin reconstruction of the bridge at the same height, arguing that the statute legalizing the bridge was uncon- stitutional because it “ha[d] the effect and operation to annul the judgment of the court already entered, or the rights determined thereby.” Wheeling Bridge 1], 59 U.S. at 431. The Wheeling Bridge II Court noted that had its prior judgment been a judgment for money damages, Penn- sylvania’s contention would have had merit (and indeed did have merit insofar as the prior judgment had awarded costs), for the judgment would have been final within the meaning of the separation of powers principle and could not have been altered by an Act of Congress. See id. (“if the remedy in this case had been an action at law, and a judgment rendered in favor of the plaintiff for damages, the right to these would have passed beyond the reach of the power of congress.”). However, to the extent that Wheeling Bridge I granted forward-looking injunctive relief, the Wheeling Bridge II] Court ruled that the judgment was “executory” rather than final, and thus its enforcement could be prevented by Congress: 33a [T}hat part of the decree, directing the abatement of the obstruction, is executory, a continuing decree, which requires not only the removal of the bridge, but enjoins the defendants against any reconstruc- tion or continuance. Now, whether it is a future existing or continuing obstruction depends upon the question whether or not it interferes with the right of navigation. If, in the mean time. since the decree, this right has been modified by the competent authority, so that the bridge is no longer an unlaw- ful obstruction, it is quite plain the decree of the court cannot be enforced. Wheeling Bridge 11,59 U.S. at 431-32. The Plaut Court observed that cases such as Wheeling Bridge II “distinguish themselves” from Plaut, 514 U.S. at 232, which involved only requests for monetary relief. The Plaut Court stated that nothing in its holding called intO question the principle established in Wheeling Bridge 11, that legislation does not violate the separation of powers by “alter[ing] the prospective effect of injunc- tions.” Plaut, 514 U.S. at 232. We understand the param- eters drawn by Plaut and Wheeling Bridge II to be as follows: Under the separation of powers, Congress lacks the authority to alter a finally rendered judgment order- ing the payment of money. On the other hand, to the extent that a court’s final judgment consists of an injunc- tion, Congress may require alteration or termination of its future effect if the law on which the injunction was predicated has been changed. Those conditions are Sat- isfied here. By statute Congress has altered the courts’ remedial powers so that, in this class of cases, injunc- tions may not be issued if they are not constitutionally mandated. Congress may accordingly require the ter- mination of the executory portions of injunctions that exceed the courts’ present remedial powers. 34a The proposition that a court has the authority to alter the prospective effect of an injunction in light of changes in the law or the circumstances is, of course, well established. See, e.g., System Federation, 364 U.S. at 646-47; United States v. Swift & Co., 286 U.S. 106, 114-15 (1932) (“Swift”); Chrysler Corp. v. United States, 316 U.S. 556, 562 (1942); Wheeling Bridge 11, 59 U.S. at 431-32. “The source of the power to modify is of course the fact that an injunction often requires continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief.” System Federation, 364 U.S. at 647. Further, that author- ity extends to injunctions entered on consent of the par- ties. “[T]he power of a court of equity to modify an injunction in adaptation to changed conditions,” even though the injunction “was entered by consent,” is “inherent in the jurisdiction of the chancery. A contin- uing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.” Swift, 286 U.S. at 114. See also Agostini v. Felton, 117 S. Ct. 1997, 2006 (1997) (“A court errs when it refuses to modify an injunction or consent decree in light of [statutory or decisional law] changes.”); Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 391 (1992) (consent decree may be reopened “to the extent that equity requires”); System Federation, 364 U.S. at 651; Western Union Telegraph Co. v. Inter- national Brotherhood of Electrical Workers, 133 F.2d 955, 957 (7th Cir. 1943) (“though a decree may be final as it relates to an appeal. . . , yet, where the proceed- ings are of a continuing nature, it is not final, . . . and the injunction will be vacated. . . where the law has been changed”). 35a In System Federation, for example, a consent decree enjoined a railroad and several unions from discrimi- nating against the railroad’s nonunion employees because of their nonunion status. At the time the decree was entered, a federal statute made such discrimination unlawful. Six years later, however, Congress amended the statute to allow collective bargaining agreements permitting an employer to require union membership as a condition of employment, and the unions asked the dis- trict court to modify the decree to make it clear that the injunction against such conditions was thenceforth to “have no prospective application.” System Federation, 364 U.S. at 645 (internal quotation marks omitted). The district court “acknowledged its authority to modify the consent decree but declined to do so, primarily out of regard for the fact that the unions. . . had consented . . . [to] an undertaking which the District Court con- sidered was not unlawful either before or after the . amendments.” /d. The court of appeals affirmed, but the Supreme Court reversed. Refusing “to recede from” the “principles of the Wheeling Bridge case,” 364 U.S. at 650, the System Federation Court noted that when the underlying law governing the conduct of the parties has been altered, the court has the power to dissolve the injunction, even “though it was entered by consent,’ ” id. at 647 (quoting Swift, 286 U.S. at 114), in order to avoid “render[ing] protection in no way authorized by the needs of safeguarding statutory rights,” System Feder- ation, 364 U.S. at 648. Given the inherent power of the courts to modify or terminate forward-looking injunctive provisions in light of changes in law or circumstances, and given the dis- tinction drawn by the Plaut Court between monetary judgments and judgments granting prospective injunc- 36a tive relief, we conclude that plaintiffs’ separation of powers challenge to the PLRA’s termination provision must be rejected. Section 3626(b)(2) does not require the termination of any relief other than prospective relief, and the definition of prospective relief expressly excludes compensatory monetary damages. Thus, the PLRA does not seek retroactively to revise past adjudi- cations by the Judicial Branch that had become “final” within the meaning of Plaut. Most of our sister Circuits that have considered this question have also reached the conclusion we reach here today. See, e.g., Hadix v. Johnson, 133 F.3d 940, 942-43 (6th Cir.) (per curiam), cert. denied, 118 S. Ct. 2368 (1998); Dougan v. Singletary, 129 F.3d 1424, 1426 (11th Cir. 1997) (per curiam), cert. denied, 118 S. Ct. 2375 (1998); Inmates of Suffolk County Jail v. Rouse, 129 F.3d at 656-57; Gavin v. Branstad, 122 F.3d 1081, 1089 (8th Cir. 1997), cert. denied, 118 S. Ct. 2374 (1998); Plyler v. Moore, 100 F.3d 365, 371-72 (4th Cir. 1996), cert. denied, 117 S. Ct. 2460 (1997). The only contrary court of appeals opinion of which we are aware, issued by a panel of the Ninth Circuit, was withdrawn by that court in connection with its granting of rehearing en banc. See Taylor v. United States, 143 F.3d 1178 (9th Cir.), petition for rehearing granted, and panel opinion withdrawn, 158 F.3d 1059 (9th Cir. 1998) (en banc). For the reasons discussed above, we share the majority view that the Act’s requirement for the termination of prospective relief, where that relief is not and cannot be supported by need-narrowness-intrusiveness findings, does not violate the finality** principle of separation of powers. ** As indicated earlier, we do not address the limitation on Congres- sional power to prescribe a rule of decision, enunciated in United States v. Klein, since plaintiffs have not argued that issue to the en banc court 37a B. Interference With Article II] Power Nor is there merit in plaintiffs’ contention that the PLRA’s provision for termination of consent decrees strips the courts of their Article II] power and duty to remedy constitutional wrongs, for the Act neither alters the scope of substantive rights nor limits the type of relief that may be ordered if that relief is necessary to redress violations of those rights. Rather, the Act forbids forward-looking relief in excess of what the court finds is necessary. Congress's power to limit the remedial authority of the federal courts, which is grounded in its power to “ordain and establish” inferior federal courts. U.S. Const. Art. III, § 1, is well established. See, €.2., Hanna v. Plumer, 380 U.S. 460, 472-73 (1965): Sibbach v. Wilson & Co., 312 U.S: 1, 9 (1941). Congress may, for example, establish substantive and procedural! prereq- uisites to the granting of specific types of relief, see, e.g., Lauf v. E.G. Shinner & Co.. 303 U.S. 323, 329-30 (1938) (certain statutorily-specified findings required before court may issue injunction in labor dispute); or give one court exclusive jurisdiction to enjoin the oper- ation of a particular statutory scheme, see Lockerty v Phillips, 319 U.S. 182, 187-88 (1943); or bar all federal courts from enjoining the collection of state taxes so long as adequate remedies are available in state court. see California v. Grace Brethren Church, 457 U.S. 393. 407-08, 411 (1982). See also Yakus v. United States. 321 U.S. 414, 442 n.8 (1944) (listing “other instances in which Congress has regulated and restricted the power of the federal courts to grant injunctions”). In the PLRA, Congress has neither defined nor altered the federal rights that may be vindicated in prisoner lit- igation. Nor has it forbidden the court, if it finds a vio- lation of federal right, to order or enforce such relief as 38a the court finds is needed to remedy the violation of that right. The Act's termination provision simply forbids the continuation of prospective relief that exceeds what is needed to remedy a continuing violation of the federal right. Existing consent decrees may have ordered, with- out adjudication of the merits of the plaintiffs’ claims or without adjudication of the appropriate scope of the rem- edy for a proven federal violation, more relief than was needed to remedy the violations. The Act's elimination of the parties’ ability to obtain judicial enforcement of the forward-looking provisions of a judgment obtained without such adjudications neither affects the court's power “ ‘to say what the law is’ in particular cases and controversies,” Plaut, 514 U.S. at 218-(quoting Marbury v. Madison, 5 U.S. (1 Cranch) at 177), nor infringes “lit- igants’ right to have claims decided before judges who are free from potential domination by other branches of government,” Commodity Futures Trading Commission v. Schor, 478 U.S. at 848 (internal quotation marks omit- ted). The court remains authorized to adjudicate the con- troversies before it and to order such relief as is necessary to remedy the federal violations it finds estab- lished. We conclude that the Act does not represent an abrogation of Article III power. C. Due Process and Equal Protection Plaintiffs’ remaining constitutional contentions do not require extended discussion. Their principal due process contention is that the termination provision deprives them of vested contractual rights. As discussed in Part III.A. above, however, the provisions of a consent decree that order prospective relief remain subject to modifi- cation or alteration for changes in law or circumstances. Such right as a litigant may have to prospective relief is thus neither final nor “vested” in the constitutional sense. —— J 39a Further, as the System Federation Court noted, a court considering whether modification of a consent decree is warranted is not bound by principles of contract: “We reject the argument. . . that a decree entered upon consent is to be treated as a contract and not as a judicial act... . [I])n truth what was then adjudged was not a contract as to any one. The con- sent is to be read as directed toward events as they then were. It was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaptation to events to be.” 364 U.S. at 651 (quoting Swift, 286 U.S. at 114-15). The System Federation Court stated that “[t}he parties can- not, by giving each other consideration, purchase from a court of equity a continuing injunction.” 364 U-S. at 651. We conclude that plaintiffs’ due process contentions were properly rejected. Accord Dougan vy. Singletary, 129 F.3d at 1426-27 (“a decree, unlike a money judg- ment, is subject to later adaptation to changing condi- tions. Legislative modification of the law governing the decree thus does not impermissibly divest the inmates of any vested rights”); Inmates of Suffolk County Jail vy. Rouse, 129 F.3d at 658 (“modifiable decrees cannot create vested rights”); Gavin v. Branstad, 122 F.3d at 1091 (“a judgment that is not final for purposes of the separation of powers is also not final for purposes of due process”). Plaintiffs’ equal protection argument is principally that the PLRA burdens the right of access to courts and thus warrants “strict serwtiny.” The right of access to courts is indeed fundamenral, see, e.g., Lewis v. Casey, 518 U.S. 323, 350-51 (1996); Bounds v. Smith, 430 U.S. 40a 817, 821-23 (1977); Wolff v. McDonnell, 418 U.S. 539, 578-80 (1974), but the termination provision does not impair that right. As discussed in Part III.B. above, noth- ing in the Act alters plaintiffs’ federal rights or prevents the court from granting such relief as is necessary to remedy violations of those rights. Plaintiffs remain free to seek an adjudication that their federal rights are being violated and to secure the relief necessary to remedy such federal violations as they establish. Further, under the Act, existing provisions for prospective relief designed to remedy violations of those rights are not to be terminated where the need-narrowness-intrusiveness findings can be made with respect to the continuation of such relief. See 18 U.S.C.A. § 3626(b)(3) (West Supp. 1998). Thus, plaintiffs’ fundamental right of access to the courts is not burdened. Accord Inmates of Suffolk County Jail v. Rouse, 129 F.3d at 660 (“[u]nder the PLRA, the courthouse doors remain open and the with- drawal of prospective relief—above and beyond what is necessary to correct the violation of federally protected rights—does not diminish the right of access”); Gavin v. Branstad, 122 F.3d at 1090 (“[t]he right to enforce a consent decree that goes beyond the bounds of consti- tutional necessity is not equivalent to the right to bring constitutional grievances to the attention of the courts”); Plyler v. Moore, 100 F.3d at 373 (“[s]Jimply put, the Inmates have confused the right of access to the courts with the scope of the available substantive relief”). Since no fundamental right is burdened, and prisoners are not a suspect class, strict scrutiny of the Act is not warranted. Plaintiffs’ equal protection claim must thus be rejected “if there is any reasonably conceivable state of facts that could provide a rational basis for the clas- sification.” Heller v. Doe, 509 U.S. 312, 320 (1993) 4la (internal quotation marks ovnitted). Under this standard, the burden is on the person challenging the legislation “to negative every conceivable basis which might sup- port it, . . . whether or not the basis has a foundation in the record.” /d. at 320-21 (internal quotation marks omitted). Plaintiffs fall far short of meeting their burden. The terms and legislative history of the Act make it clear that, in the unique context~of litigation challenging prison conditions, see generally Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989); Turner v. Safley, 482 U.S. 78, 89 (1987), Congress adopted the remedial and ter- mination provisions in order to promote, inter alia, prin- ciples of federalism and judicial restraint. The objective of limiting the grant or continuation of prospective relief in this context to no more than what is found necessary to remedy the violation of a federal right is unques- tionably a legitimate one. Accord Inmates of Suffolk County Jail v. Rouse, 129 F.3d at 660; Dougan v. Sin- gletary, 129 F.3d at 1427; Gavin v. Branstad, 122 F.3d at 1090; Plyler v. Moore, 100 F.3d at 374. IV. PROCEEDINGS ON REMAND As indicated in Part II above, we have concluded that the Act requires the termination of consent decrees pro- viding for prospective relief entered without the requi- site need-narrowness-intrusiveness findings, but that it does not require the annulment or vacatur of those decrees. Accordingly, we reverse so much of the order of the district court as vacated the Decrees at issue here. Further, as noted in Part I.A. above, the Act contains a “LIMITATION” on the immediate termination require- ment, which provides that 42a [p]Jrospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the vio- lation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation. 18 U.S.C.A. § 3626(b)(3) (West Supp. 1998) (emphasis added). Although § 3626(b)(2) uses the phrase “imme- diate termination” of prospective relief where there have been no need-narrowness-intrusiveness findings (empha- sis added), at least two aspects of that subsection, read in conjunction with the “LIMITATION” subsection that follows it, persuade us that the word “immediate” was not intended to mean without any time intervening between motion and termination. First, although the termination provision presupposes the absence of need-narrowness-intrusiveness findings, the “LIMITATION” subsection provides that prospective relief “shall not terminate” if the court makes the req- uisite written need-narrowness-intrusiveness findings; presumably such written findings cannot be made instan- taneously upon the motion by a defendant for termina- tion of a decree. Hence, Congress must have intended that there be some interval during which the requisite findings could be made. Second, the findings envisioned by the “LIMITATION” subsection must be “based on the record” and must state that prospective relief is “nec- essary to correct a current and ongoing violation of the Federal right.” Evidence presented at a prior time, how- ever, could not show a violation that is “current and ongoing.” Hence, the “record” referred to cannot mean the prior record but must mean a record reflecting con- 43a ditions as of the time termination is sought. In sum, we interpret §§ 3626(b)(2) and (3), read together, to mean that, when the plaintiffs so request in response to a defendant’s motion for termination, the district court must allow the plaintiffs an Opportunity to show current and ongoing violations of their federal rights. In the present case, plaintiffs asked the district court to allow them an Opportunity to present evidence of such current and ongoing violations and of the need for con- tinuation of the prospective relief provided in the Decrees. We conclude that plaintiffs should have been given that opportunity. Accordingly, we remand for fur- ther proceedings. The Act provides that a motion for immediate termi- nation of prospective relief pursuant to § 3626(b)(2) Operates to stay such relief beginning on the 30th day after such a motion, see 18 U.S.C.A. § 3626(e)(2) (West Supp. 1998). The Act also allows the district court to postpone the automatic stay for 60 additional days for good cause other than general calendar congestion. /d. § 3626(e)(3). Since the district court here did not allow plaintiffs to make a record with respect to the need for a continuation of prospective relief, we instruct that the 30-day period prior to the commencement of the auto- matic stay is to be deemed to begin on the day following the issuance of our mandate herein. Plaintiffs have also argued that the above 30- and 60- day periods are insufficient to give them a meaningful Opportunity to make a record as to the need for contin- uation of prospective relief and hence constitute a denial of due process. We regard any challenge at this time to the constitutionality of the automatic Stay provision as premature, and we decline to address it on this appeal. 44a Plaintiffs have also requested that this Court extend the stays we have previously entered during the pen- dency of this appeal, in order to keep the Consent Decrees in place until the proceedings on remand have been completed. In light of our reversal of the district court’s order vacating the Decrees, we regard our prior stays as moot, and we decline to extend them further. Our current stay will be vacated upon the issuance of the mandate. CONCLUSION We have considered all of plaintiffs’ arguments that are properly before us on this en banc rehearing and, except as indicated above, have found them to be with- out merit. We conclude (a) that the PLRA permissibly provides for the termination of forward-looking provi- sions of consent decrees in the absence of the need-nar- rowness-intrusiveness findings required by the Act, but does not provide for vacatur of those decrees; and (b) that plaintiffs should have been given an opportunity to present evidence showing the need for continuation of prospective relief. The opinion of the panel is vacated. The current stay granted by this Court is terminated. The order of the dis- trict court is affirmed insofar as it upheld the constitu- tionality of § 3626(b)(2), and is reversed insofar is it vacated the Consent Decrees, and the matter is remanded for further proceedings not inconsistent with this opinion. 45a JACOBS, Circuit Judge (with whom WINTER, Chief Judge, and KEARSE, WALKER, MCLAUGHLIN, CABRANES, and PARKER, Circuit Judges, join), concurring: I write separately to respond to Judge Leval’s con- curring opinion, which (i) addresses the passage in the Court's in banc opinion that explains why consent decrees are not contracts subject to state-court enforce- ment (Majority Opinion at 8493-8495), and (ii) charac- terizes that passage as unjustified dictum. For the following reason, I think that the passage is needed and useful. In testing the constitutionality of the PLRA’s “termi- nation of prospective relief” provision (18 U.S.C. § 3626(b)), the Panel opinion intimated that the provi- sion might fail if it were read to require the termination of the consent decrees. See Benjamin I], 124 F.3d 162. 176-77 (2d Cir. 1997). The Panel opinion avoided that risk by reading the provision solely as a limit on the power of federal courts to enforce the consent decrees, and by holding therefore that the consent decrees are not terminated (or vacated) and may be enforceable as con- tracts in the state courts. Jd. The Panel opinion justified its course on the perfectly sound principle that courts should avoid making unnecessary constitutional pro- nouncements if a reasonable interpretation of the statute would obviate the constitutional difficulties. See Lo Duca v. United States, 93 F.3d 1100, 1110 (2d Cir. 1996) (“[W]e are instructed to construe federal statutes to avoid constitutional infirmity. . . .”). Only by invok- ing this doctrine did the Panel opinion avoid reaching certain of plaintiffs’ separation of powers, due process, and equal protection arguments. Benjamin II, 124 F.3d at 176-77, 177 n.18. 46a The Court's in banc opinion reaches and decides the questions that the Panel avoided. See Majority Opinion at 8494 (“We do not see any basis for inferring that Congress meant federal consent decrees that are not based on need-narrowness-intrusiveness findings to remain in effect and amenable to enforcement in state courts.”). Therefore, it becomes a natural and integral part of the in banc Court’s analysis to say why we are reaching tough constitutional issues that we should avoid if we can, that is, why the detour taken by the Panel opinion is foreclosed. To do that, the Court’s in banc opinion demonstrates that the consent decrees are not in the nature of contracts that remain subject to enforce- ment and administration in the state courts. Judge Leval’s concurring opinion argues that because the Court's in banc opinion vacates the Panel opinion, there is no need to address the reason given by the Panel for avoiding the tough constitutional question. I dis- agree. The Panel opinion is vacated, not annihilated. Because we vacate it, we should say why, and explain our course, including why we reach questions that might be avoided if the consent decrees were contractual in charactér. The resulting passage in the Court’s in banc opinion is not a core holding, but neither is it dictum, let alone dictum that is “advisory” and “gratuitous.” See Leval Concurring Opinion at 8517, 8521. 47a LEVAL, Circuit Judge (with whom Judge Oakes concurs, and Judge Calabresi concurs as to Part II) concurring in part: With one reservation outlined below, | join in the majority's opinion. I. In civil actions relating to prison conditions (“prison litigation”), the Prison Litigation Reform Act (“PLRA”) grants the defendant the right to immediate termination of the prospective effect of injunctions to the extent their mandates do not meet the statute’s need-nar- rowness-intrusiveness test. See 18 U.S.C. § 3626(b)(2). The plaintiffs contend that a congressional enactment requiring such termination undoes the judgment of a fed- eral court and thereby violates the Constitution’s sepa- ration of powers. Although Congress has indeed required the alteration of a federal court’s judgment, it has done so in a per- missible manner. In § 3626(a), Congress limits the power of the courts to grant prospective relief in prison litigation to circumstances that satisfy the need-nar- rowness-intrusiveness test. Subsection (c)(1) further provides that a “court shall not enter or approve a con- sent decree” unless the decree satisfies the same test. Under subsection (b)(2), previously-entered consent decrees are terminable if they do not meet the need- narrowness-intrusiveness test. Because subsection (c)(1)’s limitation on the courts’ remedial powers and subsection (b)(2)’s provision for termination turn on the identical test, courts today would lack the power to enter the consent decrees that are terminable. All Congress has done in § 3626(b)(2), then, is to bar the courts from con- tinuing to enforce previously entered injunctions of the kind they now lack the power to command. 48a As I understand it, the Supreme Court’s opinion in Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421 (1855) (“Wheeling Bridge II”), holds that a congressional interference with a federal court’s judg- ment in such circumstances does not infringe the sepa- ration of powers. In an earlier case, Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. 518, 578 (1855) (“Wheeling Bridge I’), the Supreme Court had ordered a bridge raised or removed because it was a pub- lic nuisance that impeded navigation. Congress, how- ever, then passed legislation designating the bridge a post-road. See Wheeling Bridge II, 59 U.S. at 429. Because, as a matter of law, a congressionally-desig- nated post-road could not be adjudged a public nuisance, the Court was no longer empowered to order the abate- ment it had mandated in Wheeling Bridge I. The Supreme Court thus ruled in Wheeling Bridge II that Congress could lawfully require termination of the prospective effect of the eariier injunction. See Wheel- ing Bridge II, 59 U.S. at 431-32, 436. I understand Wheeling Bridge II to support the propo- sition that, where a federal court’s injunction has ongo- ing, prospective effect, and Congress modifies the law upon which it was predicated so that the court is no longer empowered to issue such an order, Congress may give the defendant the right to the termination of the injunction. In this case, Congress has done just that. I join in the portion of the majority opinion that so rules, as well as in its rejection of the plaintiffs’ con- tentions that § 3626(b)(2) violates constitutional prin- ciples of equal protection and due process. II. I do not join in Part IIA of the majority’s opinion. The panel opinion had expressed views that, once the consent decrees were terminated, the plaintiffs would -_ 49a continue to have contract rights arising from the settle- ment agreements that underlay the consent decrees, and that the plaintiffs might enforce those contract rights in state courts. The in banc majority opinion disagrees. It asserts first that the settlement agreements underlying the consent decrees cannot stand as enforceable con- tracts once the consent decrees are vacated; it then adds that, in any event, the PLRA does not tolerate the sur- vival of such contract rights. I express neither agreement nor disagreement with these views. In my view, those issues are simply not before us. The issues on which the parties have sought our ruling are whether § 3626(b)(2) requires termination of consent decrees that do not comply with the need-nar- rowness-intrusiveness test, and whether such termination comports with the Constitution. We answer each of those questions in the affirmative. But neither we nor the district court have been asked to adjudicate whether, after the termination of the con- sent decrees, prisoners may bring contract actions in State courts predicated on the settlement agreements that underlie the consent decrees. The majority’s views on that question play no role whatsoever in supporting the conclusions it reaches on the issues that are before us. The proposition that plaintiffs would be barred, after the termination of the consent decrees, from enforcing con- tract rights is not part of the reasoning that leads us to conclude the decrees must be terminated. The entire dis- cussion is dictum. These are advisory views that have no legal force. I assume, the majority has included the discussion because of its strong disagreement with the contrary views stated in the panel’s opinion. But we have vacated the panel’s opinion and have substituted the opinion of 50a the in banc court. The panel opinion no longer stands as an opinion of the Second Circuit. If a majority of the court feels a need to make clear that it does not endorse the views expressed in the panel opinion, it could simply say so. I do not understand why disagreement with a vacated panel opinion justifies our undertaking to adju- dicate an issue not presented in this litigation. I do not mean to imply that the discussion should nec- essarily be omitted because it is advisory. I recognize that in well-chosen instances, advisory discussion in a court opinion can serve a useful purpose. My greater concern is that the majority seems to present the dis- cussion as a holding. A reader of the majority opinion, who did not take care to compare this discussion with the relief granted, might easily conclude that the Second Circuit has adjudicated this question. We have done no such thing, and in fact have no power to do so in a case that does not put that question before us. To avoid confusion as to the state of the law, courts have an obligation when they indulge in advisory dis- cussion to identify it as such. A court’s holding, includ- ing the reasoning underlying it, has the force of law. Within the sphere of that court’s authority, the public and subservient courts are legally bound. to follow its ruling. On the other hand, dictum—even when uttered by the highest court in the land—has no legal force. A court’s power to make law derives solely from its obligation to decide cases, and extends no further than the reasoning that underlies the judgment. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821) (Marshall, C.J.) (“It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expres- sions are used. If they go beyond the case, they may be Sla respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.”).' Thus, while dictum may help observers to predict how the law may develop if and when the court eventually rules on a question, it does not have the force of law. No one is legally obligated to follow it. If litigants or courts come to consider in the future whether state law contract rights survive tHe termination of the consent decrees under the PLRA’s § 3636(b)(2), they should recognize that the Second Circuit has not adjudicated that question. It has merely expressed advi- sory views that may or may not be found persuasive.? * * * The Supreme Court recognized that its power to “say what the law is” extends solely to properly presented cases and controversies as early as 1793. Responding to a written request from Secretary of State Thomas Jefferson on behalf of President Washington seeking advice on legal questions arising from trei ies between the United States and France, the Justices wrote President Washington a letter Stating in part that “[t}he lines of separation drawn by the Constitution between the three depart- ments of the government—their being in certain respects checks upon each other—and our being judges of a court in the last resort—are con- siderations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to.” Letter from the Jus- tices to George Washington (Aug. 8, 1793), reprinted in Hart & Wech- sler's The Federal Courts and the Federal System 93 (Richard H. Fallon et al. eds., 4th ed. 1996). 2 See Imprisoned Citizens Union v. Prasse, 1999 U.S. App. Lexis 2944, at *31-32 (3d Cir. February 25, 1999) (“If the Inmates have valid con- tractual claims that survive termination {of consent decrees under the PLRA], such claims are based solely upon. . . Pennsylvania law, and are not affected by the PLRA. 18 U.S.C. § 3626(d) (“The limitations on remedies in this section shal} not apply to relief entered by a State court based solely upon claims arising under State law.”). The Inmates are therefore free to pursue relief in the Pennsylvania courts. It is not our Province to speak to the validity of any claims arising under Pennsy|- vania law, or to award relief therefor. ”) (internal quotation marks, cita- tions, and brackets omitted). 52a In response to this opinion, Judge Jacobs, joined by a majority of the court, asserts that the majority’s rejection of the survival of contract rights “is not a core holding, but neither is it dictum, let alone dictum that is ‘advi- sory’ and ‘gratuitous.’ ” He asserts that the passage is “needed and useful.” (Judge Jacobs stops short of ever directly asserting that the discussion is a “holding.” Per- haps that omission is intentional.) I think it reasonable for Judge Jacobs to insist that the discussion is “useful.” The discussion expresses my col- leagues’ disagreement with the panel on an issue that is likely to arise. The publication of such a debate may well be useful. When the question arises in litigation, the judges charged with deciding whether the PLRA toler- ates or forbids the survival of contract rights may well benefit from the airing of the views of the Second Cir- cuit’s judges. My main concern, as stated above, is not with my colleagues’ expression of their views, but with presentation in a manner that makes it appear to be a holding, having the force of law. Judge Jacobs seems to argue that the majority’s inter- pretation of the PLRA as forbidding, rather than toler- ating, the survival of contract rights is not merely advisory. His argument is ingenious and requires careful attention. He tacitly concedes that the court is not granting relief that depends on a finding that the PLRA forbids the survival of contract rights. Nonetheless, he argues as follows: 1. We consider and uphold the constitutionality of the Statute on the assumption that it forbids the survival of contract rights. 53a 2. We do this in the face of a prudential principle that counsels against adjudicating constitutional problems if they can be reasonably avoided. 3. Under this principle we cannot justify resolving the constitutional question in step | if the PLRA can plau- sibly be interpreted to allow for the survival of contract rights (as that interpretation would obviate the consti- tutional inquiry). 4. We therefore consider whether the PLRA may rea- sonably be construed to tolerate the survival of contract rights and conclude that it may not. 5. Ergo, Judge Jacobs concludes, our decision that contract rights do not survive the termination of the con- sent decrees is not merely advisory, albeit not a “core holding.” Judge Jacobs’s explanation flows elegantly from step | to step 5. The principal problem is that Step | is gra- tuitous.? We have no occasion to consider the question whether the PLRA passes constitutional muster if con- Strued to extinguish contract rights. No one has asked us to rule on whether contract rights survive the termination of the decrees. And our decision requiring the termina- tion of the decrees, the issue we are required to adjudi- cate, would be the same regardless whether the PLRA tolerates or forbids the survival of contract rights fol- lowing the termination. 3 In addition, the principle on which Judge Jacobs relies in step 2 coun- sels avoidance of constitutional issues only when they present serious problems. See Almendarez-Torres v. United States, ___ U.S.__, 118 S. Ct. 1219, 1228 (1998). The majority opinion finds no serious consitu- tional problem in upholding the statute on the assumption that it bars sur- viva! of contract rights. 54a Judge Jacobs offers a second reason why the discus- sion is not advisory, which is that “[t]he Panel opinion is vacated, not annihilated.” In other words, people can still read it, and be influenced by its ideas. If we dis- agree with it we should say so and explain why we have vacated it. Once again, the majority’s desire to disavow the views asserted in the panel’s opinion may well justify the dis- cussion, but that does not make it a holding. Whether a discussion is holding or dictum depends on its rela- tionship to the relief the court renders, not on its rela- tionship to the pronouncements of other judges in the prior history of the case. Until we are asked to rule on the survival of contract rights, our views of those com- peting interpretations of the PLRA are advisory. Even if the majority were to insist explicitly that the passage is not a dictum, but a holding, that would not make it so. That is because a court’s power to make law derives solely from its obligation to decide the disputes before it. As Judge Friendly explained in United States v. Rubin, 609 F.2d 51, 69 (2d Cir. 1979) (Friendly, J. concurring), “A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word ‘hold.’ ” I join in the adjudicatory portion of the majority’s opinion, but not in Part ITA. PRG. OE OT PI Pe ane af eT SOR, i eee ee eee ar ae a : e 3 =. 4 a % 55a CALABRESI, Circuit Judge, concurring in the result: The court today does violence to two fundamental— and conservative—principles of our Constitution: Sep- aration of Powers and Federalism. It does the first to no purpose whatsoever; it does the second needlessly, by reaching out to express views on an issue that is not yet before us. It is led to these results by an understandable desire to follow what it believes to be the will of Congress. But in so doing, the court attributes to the leg- islature views that Congress is most unlikely to have even considered, let alone held.! This case raises principally two questions. The first is whether Congress, by the language it used in the PLRA, sought directly to terminate preexisting court-ordered consent decrees,’ or whether, instead, Congress used its paramount powers merely to alter the underlying law and left it up to the courts to exercise their traditional role of applying those changes. This question may seem for- malistic, since the courts, responding to the congres- sional action, would in the case before us be inexorably led either to terminate the decrees or to bar future relief ' Concededly, all the other courts of appeals that have confronted the legislation before us today have reached similar—or, in the case of a panel of the Ninth Circuit, which held the statute unconstitutional, equally unfortunate— results. See, e.g., Imprisoned Citizens Union v. Ridge, ___ F.3d __., 1999 WL 93802, at *4-*8 (3d Cir. Feb. 25, 1999); Taylor v. United States, 143 F.3d 1178 (9th Cir. 1998), petition for rehearing granted, and panel opinion withdrawn, 158 F.3d 1059 (9th Cir. 1998) (en banc); Hadix v. Johnson, 133 F.3d 940 (6th Cir. 1998), cert. denied, __ U.S. __, 118 S. Ct. 2368 (1998); Dougan v. Singletary, 129 F.3d 1424 (11th Cir. 1997) (per curiam), cert. denied, ___ U/S. ___, 118 S. Ct. 2375 (1998); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997), cert. denied, __ U.S. __, 118 S. Ct. 2366 (1998): Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997), cert. denied, —__ U.S. __, 118 S. Ct. 2374 (1998); Plyler v. Moore, 100 F.3d 365, 372 (4th Cir. 1996). On this point, see A Cautionary Note, infra Part III. Except in certain limited circumstances. See ante at 36-38. 56a under them, thereby reaching precisely the same result whichever reading is given to the congressional lan- guage. In fact, however, it entails issues of the most fun- damental sort concerning the Separation of Powers. The second question asks to what extent Congress intended by the PLRA to limit the ability of prisoners to enter into contracts, enforceable in state courts, by which the prisoners obtain benefits in exchange for the waiver of possible federal claims. The answer to this latter ques- tion is entirely independent of the answer given to the first question. For, regardless of whether the PLRA directly terminated (or indeed vacated) federal court judgments or merely led courts not to give these consent decrees future effect, it would still remain uncertain whether the PLRA permitted state courts to find in exis- tence and to enforce, under state contract law, agreements arrived at by the parties contemporaneously with the fed- eral court consent decrees. I respectfully believe that the court today answers both of these questions incorrectly. Because the answers to these questions do not affect the outcome in the case before us, and because, as to some of the subsidiary issues in the case, I agree with the major- ity’s reasoning as well as its conclusion, I concur in the court’s result,? while strenuously, though respectfully, dissenting from most of its reasoning. I. DOES THE PLRA DIRECTLY TERMINATE THE CONSENT DECREES? A. The Language of the PLRA and Legislative Intent The relevant provision of the PLRA, 18 U.S.C. § 3626(b)(2), reads: 3 See infra note 21. Bos Ss YAS BU ES BAS Ne FO RNP TUR NT SONNY canety Te NN ree NS SRE PR a RATER tS IES Sera Ste bet ws , er 2 Bs & : & ' x 63a nuisance or trespass so i the courts will be led to ignore or to alter their earlier rulings and thereby, in effect, to nullify their prior judgments. This is so with respect to judgments that have predominantly present effects. Thus, a court would necessarily and properly amend a decree ordering that damages be paid in gold so as not to violate a subsequent statute prohibiting the pri- vate transfer of gold. This is also so, and more likely to happen, when a judgment (like a consent decree or an injunction) has important future effects. The difference between the two situations is simply that, in the latter case, the probability that the legislature will intervene—and render the prior judgment, contract, or consent decree effectively unenforceable by the courts—is much greater than in the former. In both cases, however, the point is the same. The Sovereign being Sovereign cannot be kept from passing laws, and thereby furthering its view of the public interest, merely because a contract, consent decree, or judgment of any sort exists and would be negatively affected or rendered unenforceable as a result of such legislation. The legis- lature, in all such cases, acts on its side of the constitu- tional fence. And its good neighbor—the judiciary— responds accordingly on its own terrain. That is the meaning of System Federation No. 91 v. Wright, 364 U.S. 642 (1961), in which the Supreme Court required the “ ‘court of equity to modify an injunction in adaptation to changed conditions.’ ” Jd. at 647 (quoting United States v. Swift & Co., 286 U.S. 106, 114 (1932)). In System Federation, the existing consent decree forbade party railroads and unions from dis- criminating against nonunion laborers. See id. at 644. A subsequent congressional amendment to the Railway Labor Act permitted, in certain circumstances, contracts 64a requiring union labor. See id. As a result, the Supreme Court found that the district court had abused its dis- cretion when it refused to modify the consent decree. See id. at 650-53; see also Swift & Co., 286 U.S. at 114 (“A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.”). It is also the meaning of Wheeling Bridge II. In Penn- sylvania v. Wheeling and Belmont Bridge Co., 54 U.S. (13 How.) 518 (1852) (“Wheeling Bridge I’), the Court had found that a bridge over the Ohio River was a pub- lic nuisance because its height obstructed the free nav- igation of the river and thus contravened regulations of Congress issued pursuant to the Commerce Power. See id. at 626. A subsequent enactment by Congress had declared the bridge to be a post-road—and therefore not subject to nuisance law—and found that, at its proposed height, the bridge did not interfere with any public rights of free navigation. See Wheeling Bridge II, 59 U.S. (18 How.) at 426. Accordingly, in Wheeling Bridge II (which came back to the Court when the prior victors sought a contempt order against the bridge company), the Court recognized the change in the underlying law (and “rights”) and therefore determined that the injunctive decree could no longer be enforced by the courts. See id. at 431-32.9 9 Subsequent Supreme Court cases have repeatedly interpreted Wheel- ing Bridge II as being premised on this rule. See, e.g., United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 70 (1913) (citing Wheeling Bridge II for the proposition that “[i}t is for Congress to decide what is and what is not an obstruction to navigation”); Gibson v. United States, 166 U.S. 269, 272 (1897) (noting that in Wheeling Bridge II, “it was ruled that the power of congress to regulate commerce incluves the regulation of intercourse and navigation, and consequently the power to determine what shall or shall not be deemed, in the judgment of law, an obstruction of navigation”); see also United States v. Klein, 80 U.S. (13 Sarge tea a PATEL Dey Ap SG ERR ES RRP Ace: Gs OME RY AT ch ee 90 SOM rN the Geri tS S o g x z : e > x 5 PASAY GB A: OTOP RE ee 8 8 0 Oe ye he cork. he hae TP Re a Oa say eae a 65a The language that the Court used in Wheeling Bridge I] is instructive: [T]hat part of the decree, directing the abatement of the obstruction, is executory, a continuing decree, which requires not only the removal of the bridge, but enjoins the defendants against any reconstruc- tion or continuance. Now, whether it is a future existing or continuing obstruction depends upon the question whether or not it interferes with the right of navigation. If, in the meantime, since the decree, this right has been modified by the competent authority, so that the bridge is no longer an unlaw- ful obstruction, it is quite plain the decree of the court cannot be enforced. There is no longer any interference with the enjoyment of the public right inconsistent with law, no more than there would be where the plaintiff himself had consented to it, after the rendition of the decree. Wheeling Bridge II, 59 U.S. (18 How.) at 431-32. In these cases, and many others, see, e.g., Agostini v. Felton, __ U.S. __, 117 S. Ct. 1997, 2018 (1997) (order- ing the district court to vacate “a continuing injunction entered some years ago in light of a bona fide, signifi- cant change in subsequent law”); Rufo v. Inmates of Suf- folk County Jail, 502 U.S. 367, 388 (1992) (“A consent decree must of course be modified if, as it later turns out, one or more of the obligations placed upon the par- Wall.) 128, 146-47 (1871) (“[In Wheeling Bridge IT] the court was left to apply its ordinary rules to the new circumstances created by the act. In the case before us no new circumstances have been created by leg- islation.” (emphasis added)); cf. Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 438 (1992) (concluding that a revised environmental statute, which mentioned specifically two pending federal cases, did not violate the Separation of Powers because it “compelled changes in law, not find- ings or results under old law”). 66a ties has become impermissible under federal law.”), the legislative and executive branches acted, within their powers, to alter the law, and the courts inevitably and properly adjusted their prior decrees to make the judg- ments conform to the law as it had come to be. Jn none of these cases, however, did the political branches them- selves attempt to modify a court judgment. And in none of them did they order a court to do so. The fact that these branches undoubtedly wished to bring about the result achieved, and that they enacted the law with the expectation that the courts would inexorably be led to alter their prior rulings, in no way undermined the valid- ity of what the political branches did. . . on their side of the constitutional line. When, instead, the legislature has sought on its own to modify a court decree, when it has ordered the alteration or reopening of a final judgment, the Supreme Court has expressly barred it from doing so. That is precisely what Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), told us is forbidden by the doctrine of Separation of Powers. As the Court stated in Plaut, “We know of no previous instance in which Congress has enacted retroac- tive legislation requiring an Article III court to set aside a final judgment, and for good reason. The Constitu- tion’s separation of legislative and judicial powers denies it the authority to do so.” 514 U.S. at 240; see also Hayburn’s Case, 2 U.S. (2 Dall.) 408, 411 (1792) (opinion of Wilson and Blair, JJ., and Peters, D.J.) (not- - ing that Congress cannot interfere with the judicial determination that a claimant has a right in the future to receive a pension); id. at 413 (opinion of Iredell, J., and Sitgreaves, D.J.) (same).!° 10 The majority emphasizes that it is not deciding the application of United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), to this case, not- ing that plaintiffs chose not to pursue the Klein argument, which they 67a The distinction is simple and directly germane to the case before us. If the PLRA constitutionally deprives the federal (and state) courts of jurisdiction to enforce con- sent decrees of the sort before us, then the courts affected will necessarily refuse to give future effect to these decrees. If instead the PLRA seeks directly to order the same courts to alter, modify, or terminate the decrees themselves, then it attempts to do exactly what has never been permitted. For then it grants the legisla- tive and the executive branches naked power over the courts and their holdings. Such a grant impermissibly crosses the fence and trespasses on the judicial terrain. In upholding this unprecedented infringement, the in banc court (like the other circuits that have read the PLRA directly to terminate the consent decrees) relies on dicta in Plaut. The Court in Plaut, upholding the made to the panel, before the in banc court. Accordingly, the question remains open. I believe that interpreting the PLRA provisions before us to mean what the majority reads them to mean renders the provisions violative of both Plaut and Klein. In Klein, the Supreme Court held that the Separation of Powers doctrine is violated when Congress prescribes _ a rule of decision for courts to follow without permitting courts to exer- cise their judicial powers independently. See id. at 146-47. The PLRA, on the majority’s reading, not only reopens final judgments by directing federal courts to cancel existing decrees, it also appears to dictate the rule of decision for a distinct group of Article III cases in violation of Klein. What is deeply troubling, however, is that, although the majority today purports to leave the Klein question open, by interpreting the PLRA in the manner that it has, it precludes a future panel of this Court (faced with another challenge to the PLRA in which a Klein argument is pur- sued) from interpreting the PLRA in a manner that would avoid the grave constitutional difficulties under Klein that inhere in the majority’s interpretation. Such a future panel will therefore be forced to address the Klein issues head on—and might perhaps be led to strike down the PLRA provisions that would clearly survive on the Benjamin panel’s reading of the law. The statute would then fall—irony of ironies—as a result of the majority’s desire to apply a non-existent congressional intent in the case before us. 68a strictest form of Separation of Powers, differentiated Wheeling Bridge II from the case then before it. It stated that Wheeling Bridge II distinguished itself, since it involved legislation that only “altered the prospective relief of injunctions,” rather than a current judgment. Plaut, 514 U.S. at 232. I believe that the majority mis- reads this statement when it says that legislatures may directly terminate judgments so long as they have only future effects. It is hard to see why it should make any difference— for the doctrine of Separation of Powers—whether the judgment of the judicial branch that is legislatively interfered with is one that has prospective effect or one that does not. In both instances, the other branches directly invade judicial territory. Nor is such a distinc- tion needed, or even useful, in explaining Wheeling Bridge II. The difference, as previously noted, between present and future effects can be crucial when the leg- islative and executive branches have not sought to alter a judgment but have instead promulgated a law that alters the legal rules on which the judgment was based. In such cases—for example, Wheeling Bridge I]—it is clearly to be expected that a court will modify a judg- ment’s prospective effect. And, since there are no imped- iments to its doing so, that judicial modification is inevitable. See, e.g., System Fed’n, 364 U.S. at 647 (requiring such a change); Swift & Co., 286 U.S. at 114 (same). Conversely, it is rare that the courts have the authority to alter a judgment that has no future conse- quences. See, e.g., Agostini, 117 S. Ct. at 2018 (“Inter- vening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6). . . .”). But when they do, the rule of Wheeling Bridge II would apply to these — ~ 2: af eeeumenes Seat ek 8 te Bn ial ea Fe y ? pe a BG ey re ee ee eS A ate tas a ? 69a judgments as well. See Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 393- 94 (1993) (citing with approval Klapprott v. United States, 335 U.S. 601, 613-14 (1949) (opinion of Black, J.) (permitting a judgment that had become final four years earlier to be reopened under Rule 60(b) in the interest of justice)); Matarese v. reFevre, 801 F.2d 98, 106 (2d Cir. 1986) (“A postjudgment change in the law having retroactive application may, in special circum- stances, constitute an extraordinary circumstance war- ranting vacation of a judgment.” (emphasis added)). All of these are totally different from the situation that occurred in Plaut (and not in Wheeling Bridge IJ). In Plaut, the legislative and executive branches purported to modify a judgment on their own. As such, they man- ifestly interfered with the judicial branch, and endan- gered the Separation of Powers. That, moreover, would have been so even if the judgment they abused impli- cated future instead of present effects. For then too, Congress and the President, by directly altering an order of the court, would have impermissibly invaded the judi- cial terrain. And that is precisely what Plaut says they may not do.!! 11 Professors Tushnet and Yackle argue similarly: Plaut’s analysis suggests that Wheeling Bridge cannot stand for the broad proposition that Congress may alter any injunction what- soever. That broad proposition would mean that the fundamental separation-of-powers principle articulated in Plaut does not apply to injunctive actions at all. But nothing in the Court’s statement of the principle suggests why congressional interference with actions at law is more problematic than congressional interference with equitable remedies. The Court in Plaut indicated the way out. . . Federal Rule of Civil Procedure 60(b), which authorizes the federal courts to relieve parties from a final judgment for specified reasons. . . (footnote continued) 70a The majority today seeks to blur the distinction by holding explicitly what most of the other circuits have held at least implicitly: that Congress may only directly affect an existing injunctive decree if the legislature both has the power to alter the underlying substantive law and has actually exercised that power in the statute at issue. See ante at 33. This express limitation is highly desir- able in that it precludes Congress from seeking to mod- ify prior judgments both in areas as to which it has no underlying constitutional authority (for example, diver- sity cases), and also in areas where it has the authority, but has not consciously chosen to exercise it. The major- ity’s limitation, however, in no way cures the funda- mental Separation of Powers defect. It remains the fact that, under the majority’s ruling, the legislature is, for the first time in our history, permitted directly to order courts to modify their final judgments. And the court fails to explain why such a direct infringement is more acceptable when dealing with judgments that have long- term future effects (like injunctions) than it is as to judg- [and] reflects and confirms the courts’ own inherent and discre- tionary power. The Court’s emphasis on judicial discretion, which might be understood in this context as an essential attribute of the judicial power protected by Plaut’s separation-of-powers holding, explains the limits of Wheeling Bridge’s holding. In Wheeling Bridge the interstate commerce clause gave Congress the power to declare that the bridge did not interfere with interstate commerce. Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act, 47 Duke L.J. 1, 61-62 (1997) (footnotes and internal quotation marks omitted). As Alexander Hamilton wrote in the Federalist Papers, “[the] legis- lature without exceeding its province cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases.” The Federalist No. 81, at 484 (Alexander Hamilton) (Clin- ton Rossiter, ed., 1961) (emphasis added). Tla ments the effects of which are more proximate (like restitution or damages). The majority’s approach, moreover, highlights the manifest absurdity of ascribing to Congress the intent to affect directly the decrees in this case. The majority’s holding means that in order to command direct termi- nation of the decrees, Congress must have changed the underlying law so as to render the decrees unenforce- able. But once it has done so—and we all agree that it has—the Supreme Court’s jurisprudence, as set forth in cases like System Federation, 364 U.S. 642 (1961), and Swift & Co., 286 U.S. 106 (1932), makes clear that lower courts are themselves obligated to comply with the altered underlying law and to cease to enforce the decrees. Why on earth then would Congress intend to do more and seek to void the decrees directly when the same result would occur anyway? And why should we read the legislature’s admittedly awkward language to do this when such a reading has radical consequences for the traditional division between courts and legislatures? Indeed, the fact that the majority relies upon System Federation and Swift & Co. to make its point, see ante at 33-34, drives home the fact that holding that Congress terminated the decrees themselves (rather than that it altered the underlying law) does not affect the practical result in this case. It merely allows Congress gratu- itously to undermine the doctrine of the Separation of Powers and invade what is traditionally the province of the judiciary. C. The Formal Structure of Separation of Powers Doctrine The distinction between altering the law underlying a judgment—thus leading the courts to modify a judg- 72a ment—and altering the judgment itself may seem a for- malistic one. But that is not a valid criticism.!? As Jus- tice Scalia, the author of the majority opinion in Plaut, wrote in another context, “Of all the criticisms leveled against textualism, the most mindless is that it is ‘for- malistic.’ The answer to that is, of course it’s formalis- tic! The rule of law is about form... . Long live formalism. It is what makes a government a government of laws and not of men.” Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law, at 3, 25 (Amy Gutmann ed., 1997) (emphasis in original). His statement applies equally here.'3 The Separation of Powers doctrine, Plaut tells us, is a “structural safeguard rather than a remedy to be applied only when a specific harm, or risk of specific 12 Though the majority’s approach and mine have the same effect on prisoners’ rights in the case before us, the difference between us may not be totally formal. The majority’s position may permit the legislature to order the precise response that the courts must make as a result-of an alteration in the underlying law. Thus, the majority seems to countenance a legislative order that a decree be vacated, when in fact termination of the judgment would equally well comport with the changed law. In the instant case, the issue is of no practical significance, but it might well be in other situations. It is possible that the majority’s holding means to be more limited still and that its decision allows Congress to order a spe- cific change in a judgment only when that change is the sole way of adapting the judgment to the altered underlying law. If that is so, the absurdity of ascribing such an intent to Congress becomes even clearer, for then under System Federation, the courts are bound to make the iden- tical change on their own. 13 This, of course, is not to suggest that the Separation of Powers doc- trine is only about formalisms. Separation of Powers notions may well make some results unconstitutional no matter how they are obtained. Thus, Congress presumably could not require Article III judges regularly to take on prosecutorial functions, regardless of whether it did so directly or indirectly. LR MGR EIN Gt 73a harm, can be identified.” Plaut, 514 U.S. at 239. And the doctrine is a “prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” Jd. It is no accident, therefore, that what some may label as “formalisms” are a mainstay of the Court’s Separation of Powers and Federalism decisions. The Court’s recent decision in Printz v. United States, __ U.S. __, 117 S. Ct. 2365 (1997), reiterated this point: Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear “formalistic” in a given case to partisans of the measure at issue . . But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government pre- cisely so that we may resist. . . temptation. . . Id. at 2383 (quoting New York v. United States, 505 U.S. 144, 187 (1992)) (internal quotation marks omitted). In other words, when great structural boundaries are at stake, the Court has repeatedly made clear that how something is done (i.e., whether a judgment is directly altered or whether the underlying law is changed in such a way as to lead the courts to modify their judgments) can be at least as important as the result that is achieved. '4 14 Nowhere is this exemplified more dramatically than in the Court’s Eleventh Amendment jurisprudence. See, e.g., Osborne v. Bank of United States, 22 U.S. (9 Wheat.) 738, 857 (1824) (positing the critical dis- tinction between suing a state eo nomine or its officers for Eleventh Amendment purposes: “it is the party named in the record”). A person suing a state in federal court, therefore, must sue its officers as opposed 74a In the context of the Separation of Powers, it is the formal independence of the courts that is safeguarded by an absolute rule—never before infringed—that says that court judgments are not to be touched by the legislative and executive branches. The basic power to legislate (and to enforce that legislation) in the public interest is not undercut by this formal rule (that is, the power to achieve a result in terms of prisoners’ rights is unal- tered), but the dignity of the courts gua courts is pro- tected by it.!5 to the state itself—even though the result is the same. Similarly, one who wishes to sue a state officer for money damages in federal court must label the suit as against the officer in his or her individual capacity; oth- erwise the claim is barred by the Eleventh Amendment. See, e.g., Edel- man v. Jordan, 415 U.S. 651, 678 (1974) (holding that the Eleventh Amendment bars claims for retroactive damages that run against the state treasury). Thus, the Eleventh Amendment protects the formal Sovereignty of the state by rules that in most cases do not alter results. 15 The same approach has been consistently applied by the Supreme Court in other areas to preserve the delicate balance among the branches of government as well as between our federal and state governments. See, e.g., City of Boerne v. Flores, __ U.S. __, 117 S. Ct. 2157, 2164 (1997) (striking down the Religious Freedom and Restoration Act, not- ing that “[Congress] has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation”); Printz, __ U.S. _., 117 S. Ct. at 2378 (striking down portions of the Brady Act, which imposed certain regulatory obligations on state law enforcement officials, based in part on the fact that the law would effect a dimin- ishment of the executive branch’s power to administer the laws); New York, 505 U.S. at 187-88 (holding a federal hazardous waste law impos- ing obligations on states unconstitutional for compelling states “to enact or administer a federal regulatory program”); Gregory v. Ashcroft, 501 U.S. 452, 470 (1991) (requiring a clear sta [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0470%3A2. Public record. Not legal advice.