William & Mary Law Review


Congress has developed a deeply problematic habit of aggrandizing itself by snatching cases from the Article III courts. One form of contemporary case snatching involves directly legislating the outcome of pending litigation by statute. These laws do not involve generic amendments to existing statutes but rather dictate specific rulings by the Article III courts in particular cases. Another form of congressional case snatching involves rendering ongoing judicial proceedings essentially advisory by unilaterally permitting a disgruntled litigant to transfer a pending case from an Article III court to an executive agency for resolution. Both practices involve Congress reallocating the business of the Article III courts, and both should be deemed to violate the separation of powers doctrine. Unfortunately, however, the Supreme Court’s institutional response to this troubling new trend of congressional reassignment of core judicial business has been (at best) halting, tepid, and weak. In a trio of recent decisions, the Justices have given Congress a green light to direct merits results in pending litigation before the Article III courts ( Patchak v. Zinke and Bank Markazi v. Peterson) and also blessed giving disgruntled litigants the unfettered right to remove pending judicial business from an Article III court to an Article II agency (Oil States Energy Services v. Greene’s Energy Group).

These three decisions reflect a regrettable return to functionalist analysis in separation of powers disputes involving threats to the structural integrity and independence of the Article III courts. Simply put, vesting the “judicial power” in the federal courts means that judges, not members of Congress, must decide how to interpret and apply the law. This is, after all, the central holding of Marbury v. Madison. Under well-settled separation of powers principles, Congress should not be permitted to aggrandize itself by usurping the decisional authority of the Article III courts. Nor should Congress be empowered to render ongoing federal court proceedings entirely advisory by vesting a litigant who fears an adverse decision with the unilateral power to force a remand of a pending lawsuit to a potentially more sympathetic federal administrative agency. Alexander Hamilton, writing in The Federalist Papers, presciently observed that the judiciary constitutes the least dangerous branch of the federal government. If this is so, it also means that the judiciary is the weakest of the three branches. Separation of powers doctrine and practice must take account of this important structural reality. Vindicating the Madisonian system of checks and balances requires that congressional case snatching, in all of its forms and manifestations, must be categorically resisted and rejected.