The Irrepressible Myth of Klein

Howard M. Wasserman, Florida International University College of Law

Abstract

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of federal courts: 1) Congress cannot dictate case outcomes or judicial findings and conclusions; 2) Congress cannot tell courts how to understand, interpret, or apply the Constitution; and 3) Congress cannot enact unconstitutional rules. But close analysis also reveals that these principles are neither exceptional nor vigorous as judicial constraints on congressional power. Blatant legislation actually violating any of these principles is unlikely to be enacted. On the other hand, in 140 years, Klein has not been used to invalidate any actual legislation, other than the law at issue in Klein itself. The myth of Klein is demonstrated in two recent pieces of Global War on Terror legislation: the Military Commissions Act of 2006, which limited federal judicial decisionmaking in cases brought by GWOT detainees, and the FISA Amendments Act of 2008, which granted telecommunications companies retroactive immunity for their assistance to the Bush Administration in conducting domestic warrantless surveillance. Both pieces of legislation survive constitutional Klein scrutiny, revealing that, properly understood, the case does no real constitutional heavy-lifting. At bottom, Klein becomes the lynchpin for constitutionalizing basic policy preferences against these laws. But this ignores a central distinction between bad policy and unconstitutional policy; we cannot confuse what the Constitution prohibits with bad statesmanship. Couching policy objections in Klein terms does not make the decision any less a constitutional myth.