John C. Harrison (University of Virginia School of Law) has posted Legislative Power and Judicial Power (Constitutional Commentary, forthcoming) on SSRN. Here is the abstract:
There are two possible accounts of the difference between the legislative and judicial powers granted by the Constitution and each has surprising implications. According to one, the difference is purely between two different government functions, making legal rules and applying them. If that is correct, then the legislative power can accomplish any legal result the judicial power can, but not vice versa (putting aside constitutional limits on the legislative power that do not result from its separation from judicial power). According to the other, the two powers differ because only the judicial power may operate on certain legal interests. If that is correct, the structural difference between the two powers depends on differences among the legal rules being made or applied, not the functions of government institutions. That understanding of the distinction underlay 19th century vested rights doctrine and underlies the Supreme Court’s current doctrine that limits Congress’ power to undo final judgments. Although the wholly structural understanding of the two powers may seem to make their separate vesting in independent institutions pointless, it does not, and not only because constitutional restrictions limit American legislature’s ability to create any legal rules they wish. Even a legislature with that power would be substantially constrained by an independent judiciary, because it would have to exercise its power openly, through legal rules, and not covertly, by influencing the judge’ incentives.
Highly topical in light of the Supreme Court's grant of cert in Bank Markazi v. Peterson on Thursday. The question presented there is:
Whether [§ 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U.S.C. § 8772] —a statute that effectively directs a particular result in a single pending case—violates the separation of powers.
Further background (from the petition):
This case concerns nearly $2 billion of bonds in which Bank Markazi, the Central Bank of Iran, held an interest in Europe as part of its foreign currency reserves. Plaintiffs, who hold default judgments against Iran, tried to seize the assets. While the case was pending, Congress enacted § 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U.S.C. § 8772. By its terms, that statute applies only to this one case: to “the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG).” Id. § 8772(b). “In order to ensure that Iran is held accountable for paying the judgments,” it provides that, notwithstanding any other state or federal law, the assets “shall be subject to execution” upon only two findings—essentially, that Bank Markazi has a beneficial interest in them and that no one else does. Id. § 8772(a)(1), (2).
Howard Wasserman comments on the grant at Prawfsblawg: U.S. v. Klein returns to SCOTUS.
[Disclosure: some time ago I did some informal though compensated consulting work on the Markazi case. Even then I did not know what to think about it.]
Posted at 6:15 AM