Lawsuit Veto by Congress Dissected by High Court

WASHINGTON (CN) – The justices of the Supreme Court questioned the constitutionality Tuesday of a federal law that bulldozes lawsuits over a tract of land held in trust by the U.S. government for Native Americans.

Making his second Supreme Court appearance in five years this morning, David Patchak has been fighting for nearly a full decade over the fate of property near his home in Wayland Township, Michigan, which the United States took into trust for a band of Pottawatomi.

Patchak has argued that construction of a casino on the land by the Gun Lake tribe will bring new traffic and taxes to his hometown.

Though the Supreme Court got Patchak’s case off the ground in 2012 – rejecting the government’s claims that it was immune from suit – federal lawmakers intervened in 2014 with passage of the Gun Lake Trust Land Reaffirmation Act.

The law codified the government’s decision to take the land into trust, while also banning any lawsuit “relating to the land” from being filed in federal court.

Patchak brought his case to the Supreme Court again after the D.C. Circuit affirmed its latest dismissal.

Arguing for the landowner Tuesday, attorney Scott Gant said Congress stepped into a “quintessential judicial function” when it changed the law and removed the court’s jurisdiction.

“What we would have here if you affirm and uphold the Gun Lake Act, you will have judges looking over their shoulders wondering if they’re going to be next in a case like this court was in Patchak I, where Congress says we don’t like the results,” said Gant, of the firm Boies Schiller & Flexner.

Gant agued that this would run afoul of the 1871 case United States v. Klein, in which the Supreme Court found that it cannot direct a court to decide pending cases a certain way.

The government argues that the Gun Lake Act simply altered jurisdictional rules for a court, a function clearly given to Congress, but Gant disputed this, noting that the word jurisdiction is not mentioned once in the act.

“Congress is entitled to try and affect the outcomes, but the process of how it does it very much matters,” Gant said. “And this is about as an egregious circumstance as I can imagine of Congress actually dictating the outcome of a case by saying you must dismiss without changing the underlying law and leaving it to courts to apply in future circumstances.”

The justices struggled with how to craft a test that would allow Congress to exercise its right to alter a court’s jurisdiction while preventing it from doing so to kill a lawsuit it does not want to succeed.

“You say [Congress is] directing the outcome of these cases, but any time Congress jurisdiction-strips, and that applies to pending cases, it does direct the outcome of those cases,” Justice Elena Kagan said to Gant this morning. “Once upon a time those cases should proceed. Now they can’t.”

The justices also dissected claims by the government and the tribe that the law was directed at a whole class of claims relating to the property, not Patchak’s suit in particular.

Chief Justice John Roberts resurrected a hypothetical from Bank Markazi v. Peterson, a 2016 case that upheld a law setting aside assets from Iran’s central bank for enforcement actions related to the country’s sponsorship of terror. The hypothetical imagines a case between a person named Smith and a person named Jones, with Roberts wondering how it is fair that Congress could direct a court to rule for Smith by passing a law that deprives it of jurisdiction over Jones’ claims.

Assistant to the Solicitor General Ann O’Connell challenged Gant’s assertion that the Gun Lake Trust Land Reaffirmation Act is an empty law, calling it a substantial change that still preserves a role for courts in cases related to the land near Patchak’s house.

“This statute, although that seems to the petitioner, and it may be the practical effect, that because his is the only case that’s pending, it’s the only one that is dismissed, this is not a statute that is directed toward just Smith v. Jones, Smith wins,” O’Connell said, embracing the chief justice’s hypothetical.

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