The Supreme Court agreed Monday to decide a case that could reshape Congress’ power to use legislation to affect the outcome of specific ongoing court cases — in this instance, a 2014 law about a Michigan land tract and its use as a Native American casino.
The move puts the justices back into a long chain of litigation and legislation about whether the Interior Department could take that tract into trust for the Gun Lake Tribe of Pottawatomi Indians to pave the way for gaming operations — and whether a nearby resident can sue to stop it.
The case likely will be set for arguments in the next term that starts in October, and it will be the second time the Supreme Court rules in the case. Back in 2012, the justices ruled David Patchak could pursue a lawsuit challenging the government land trust over his concerns it would ruin the community.
That’s when Congress stepped in, and the current separation-of-powers controversy began.
In response to the 2012 Supreme Court decision, Democratic Sen. Debbie Stabenow of Michigan introduced a law that reaffirmed the trust status of the land and required the federal courts to dismiss Patchak’s lawsuit. A district court judge found the “clear intent” of Congress was to make the litigation moot and dismissed the case.
Patchak’s lawyers say that sets a dangerous precedent of permitting Congress to encroach on powers reserved for the judicial branch.
“If Congress may direct federal courts that a pending case ‘shall be promptly dismissed,’ without any modification of generally applicable substantive or procedural laws, then there is no meaningful limitation on the legislature’s authority and ability to effectively review and displace judicial decisions it finds inconvenient or with which it disagrees,” the Supreme Court petition states.
Patchak may have only a few sympathetic ears at the Supreme Court. The justices decided a similar case in April, a 6-2 opinion upholding a law that allows victims of terrorist attacks sponsored by Iran to pursue $1.75 billion tied to the central bank controlled by the Iranian government.
In that case, Bank Markazi, the Iranian central bank, argued that the law was unconstitutional because it determined a particular result in a single pending case — identified by one federal district court docket number where the cases were consolidated. The majority said Congress acted comfortably within its authority because the law covered a category of cases.
But Chief Justice John G. Roberts Jr., in the dissenting opinion joined by Justice Sonia Sotomayor, warned that the decision would tip power from the federal courts to Congress. “Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the winners and losers in particular pending cases,” Roberts wrote in April.
The government cited that Bank Markazi case to try to convince the Supreme Court not to hear Patchak’s case, arguing in a brief that it covers all lawsuits about the property, not only the lawsuit brought by Patchak.
“In any event, as the Court recently explained in Bank Markazi, there is nothing inherently suspect about particularized legislation, and this Court and other courts have consistently ‘upheld as a valid exercise of Congress’ legislative power diverse laws that governed one or a very small number of specific subjects,’ ” the briefing said.
Steve Vladeck, a law professor at the University of Texas and frequent Supreme Court commentator, contends that the Patchak case is different.
“If left intact, Congress could use this statute as a model in the future,” Vladeck wrote on Twitter. “And could potentially find far more nefarious ways to interfere with the judicial power in cases with far higher profiles than Patchak.”
The case is David Patchak v. Ryan Zinke, et al., Docket No. 16-498.