Cases about foreign affairs have long raised unique and challenging separation of powers issues.1 Last Term, in Bank Markazi v. Peterson,2 the Supreme Court approved Congress’s efforts to make certain Iranian assets available to satisfy the judgments in cases brought against Iran for its role in specific instances of international terrorism. Apart from its conclusion that Congress had not intruded upon the Article III judicial power, the Court relied on the foreign affairs context to provide “[a]dd[ed] weight” to its decision.3 As the Chief Justice noted in dissent, the Court’s Article III analysis tips the balance of power in favor of Congress over courts in adjudicating the disposition of foreign-state assets.4 But the Court’s reliance on the foreign affairs context also invites other difficult constitutional questions about executive unilateralism and how courts should address other Article III questions where foreign affairs are at stake.
Bank Markazi involved claims brought under the “terrorism exception” of the Foreign Sovereign Immunities Act of 1976 (FSIA).5 The FSIA “provides the sole basis for obtaining jurisdiction over a foreign state in the courts of” the United States.6 Although foreign sovereigns are generally immune from suit, the FSIA makes an exception for state sponsors of terrorism.7 But victims of state-sponsored terrorism who prevail on the merits of their claims often face another hurdle: locating property subject to execution to satisfy the judgment.8
Deborah Peterson and other plaintiffs in sixteen consolidated cases against the Islamic Republic of Iran found themselves in just such a conundrum.9 After obtaining judgments against Iran for its role in international terrorism — mostly arising out of an attack on a Beirut outpost of the U.S. Marines in 198310 — Peterson registered the judgments in the U.S. District Court for the Southern District of New York and moved for execution.11 The court initiated judgment-enforcement proceedings.12 But Bank Markazi, Iran’s central bank, was not so eager to pay. It raised a host of legal defenses,13 which proceeded to litigation.
Then in 2012 — while the case was still pending — Congress decided the plaintiffs deserved to be paid. It passed (and the President signed) the Iran Threat Reduction and Syria Human Rights Act of 2012.14 Section 502 of the Act, codified at 22 U.S.C. § 8772, provided that, if a court found certain facts regarding the assets,15 then “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),” would be subject to execution to satisfy Peterson’s judgment.16 The law abolished Bank Markazi’s other defenses: it applied “notwithstanding any other provision of law, including any provision of law relating to sovereign immunity, and preempt[ed] any inconsistent provision of State law.”17 And because all of the facts about the assets that the court had to “find” before subjecting them to execution were undisputed, the effect was that the Peterson plaintiffs would be paid.
Bank Markazi, stripped of its other defenses,18 argued that § 8772 was unconstitutional. By dictating the result in a single pending case, the Bank argued, § 8772 usurped the judicial prerogative to decide cases in violation of the separation of powers.19 The district court rejected the argument, reasoning that § 8772 “merely ‘chang[ed] the law applicable to pending cases’” and did not “usurp the adjudicative function assigned to the federal courts.”20 The Second Circuit unanimously affirmed,21 and the Supreme Court granted certiorari to resolve the separation of powers question.22
The Court affirmed in an opinion by Justice Ginsburg.23 It began by listing the powers forbidden to Congress: Congress may not “requir[e] federal courts to exercise the judicial power in a manner that Article III forbids”;24 it “may not usurp a court’s power to interpret and apply the law to the [circumstances] before it”;25 it may not “vest[] review of the decisions of Article III courts in officials of the Executive Branch”;26 and it may not “retroactively comman[d] the federal courts to reopen final judgments.”27 But the Court rejected Bank Markazi’s argument that United States v. Klein,28 a decision from the late nineteenth century, forbade Congress also from “prescrib[ing] rules of decision to the Judicial Department . . . in [pending] cases.”29 Relying on “[m]ore recent decisions,”30 the Court concluded that Klein constrained neither Congress’s power to amend the law nor its power to make laws retroactively applicable to pending cases.31 And, it reasoned, § 8772 did no more than that: it simply “changed the law by establishing new substantive standards, entrusting to the District Court application of those standards to the facts (contested or uncontested) found by the court.”32 The Court challenged Bank Markazi’s assertion that the law dictated the outcome of a single case,33 arguing that § 8772 really applied to sixteen different (but consolidated) suits spanning more than 1000 plaintiffs.34 But even accepting the Bank’s characterization, the Court saw no problem with “particularized legislative action.”35
That sufficed to resolve the case. But the Court continued for another two pages to “stress, finally, that § 8772 is an exercise of congressional authority regarding foreign affairs, a domain in which the controlling role of the political branches is both necessary and proper.”36 It invoked Dames & Moore v. Regan37 — a 1981 decision approving the President’s order to nullify attachments of Iranian assets and suspend pending claims against Iran in U.S. courts — as support for the proposition that “Congress and the President have, time and again, as exigencies arose, exercised control over claims against foreign states and the disposition of foreign-state property in the United States.”38 The Court further noted that, before Congress passed the FSIA, “the Executive . . . regularly made case-specific determinations whether sovereign immunity should be recognized, and courts accepted those determinations as binding.”39 The Court thus concluded that, in passing § 8772, Congress had “acted comfortably within the political branches’ authority over foreign sovereign immunity and foreign-state assets.”40
The Chief Justice dissented.41 In his view, Congress “unconstitutional[ly] interfere[d] with the judicial function” by itself deciding the outcome of a single pending case.42 Section 8772, he reasoned, was akin to the sort of colonial-era legislative interference with state courts that Article III sought to curb.43 Congress had not “establish[ed] any generally applicable rules”; it had merely “decid[ed] this particular case.”44 Such an “outcome-determinative” and “explicitly limited” law, he argued, was unprecedented.45 Relying principally on Klein, the Chief Justice concluded that § 8772 impermissibly intruded upon the Article III judicial power.46 The two “factual determinations” purportedly left for the court to adjudicate, he argued, were a charade: both were undisputed when Congress passed § 8772.47
The Chief Justice also disagreed with the majority’s reliance on Dames & Moore. That decision, he noted, had sought to confine itself to the facts then before the Court.48 But even assuming Dames & Moore had modern relevance, the Chief Justice argued, it did not reach so far as the majority would stretch it: the Dames & Moore executive action moved claims from Article III courts to a separate tribunal but did not specify how they were to be resolved, and thus was “not [an] exercise[] of judicial power.”49 As a result, “no comparable history sustain[ed] Congress’s action here, which seeks to provide relief to respondents not by transferring their claims in a manner only the political branches could do, but by commandeering the courts to make a political judgment look like a judicial one.”50 And he cited Medellín v. Texas,51 noting parenthetically that the Medellín Court had “refus[ed] to extend the President’s claims-settlement authority beyond the ‘narrow set of circumstances’ defined by the ‘systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned.’”52
Bank Markazi’s most direct consequences are its thin reading of Klein and its recognition of a congressional power to tailor legislation to specific pending cases.53 Less obvious, though, are the case’s potential implications for the President and for future intrusions on Article III. The Court’s reliance on Dames & Moore and its failure to specify what “[a]dd[ed] weight”54 the foreign affairs context lent to its Article III analysis raise unanswered questions about executive unilateralism and how courts should approach Article III issues where foreign affairs are involved.
First, the Court’s Dames & Moore analysis may support an argument for future Presidents to do by executive order what Congress did in § 8772. The majority’s citations to Dames & Moore to support § 8772 were a stretch. At issue in Dames & Moore were suspensions of pending claims by U.S. nationals against the Iranian government, pursuant to an executive agreement with Iran. The Court upheld those suspensions in light of “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned” that supported claim settlement by executive agreement.55 As Chief Justice Roberts noted in dissent in Bank Markazi, “no comparable history sustain[ed] Congress’s action here.”56
But the Bank Markazi Court generalized from Dames & Moore’s reliance on a history of foreign claim settlement to the abstraction that “Congress and the President have, time and again, as exigencies arose, exercised control over claims against foreign states and the disposition of foreign-state property in the United States.”57 True enough — but prior dispositions of foreign-state property, whether by Congress or the President or both combined, never raised Article III issues of the kind presented in Bank Markazi. The Court’s argument, essentially, was that (1) the political branches had controlled the disposition of foreign-state property before, (2) § 8772 controlled a disposition of foreign-state property, and therefore (3) § 8772 was analogous to the sort of actions described in Dames & Moore that enjoyed “longstanding” historical support coupled with a “history of congressional acquiescence.”58 With this clever sleight of hand, the Court cited a history of claim settlement by executive agreement to support the (ever so slightly) different practice of directing — pursuant to a few perfunctory factual determinations — execution on particular assets to satisfy a judgment.
So understood, Bank Markazi may reasonably be read to support Dames & Moore–style executive action with regard to subjecting assets to execution. In describing what Congress had done in § 8772, the Court never claimed that only Congress could accomplish this task. The Chief Justice believed § 8772 to be an exercise of judicial power,59 and the Court rejected that characterization. And the Court did rely, in Parts II-A and II-B of its opinion, on a number of cases providing support for a legislative power to change the substantive law governing a pending case, including where the change is limited to a single case.60 But those parts never characterized § 8772 as an exclusively legislative function; they merely characterized it as a permissible one. The Court brushed away the Chief Justice’s concerns about extending Dames & Moore with a footnote explaining that the risk of Dames & Moore becoming a “license for the broad exercise of unilateral executive power” was “nonexistent here,” as § 8772 had been passed by Congress.61 But similar attempts by the Dames & Moore Court to limit its own decision to its facts proved unavailing,62 and future executive branch lawyers interpreting the scope of presidential authority will reasonably cite Bank Markazi for its broader implications.63 In seasons of partisan gridlock,64 unilateralism may become an attractive option where foreign assets are of particular importance to the executive branch.65
Importantly, Bank Markazi does not support a broader power of future Executives to order execution on particular assets in contravention of congressional will. That scenario would place the President within the third of the three categories of executive action described by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer66 — where the President acts against the will of Congress. In Category III, the President must possess exclusive authority over the subject in order to prevail over Congress.67 The Dames & Moore Court declined to specify where, precisely, the President’s actions fell, but they were clearly well outside Category III.68 And the Supreme Court has never recognized an exclusive executive power to “effect[] a change in . . . substantive law”69 governing pending suits; in fact, it has expressly rejected such a power.70 Still, outside Category III — that is, in any case where Congress is unwilling to take a stand or unable to muster a majority, and where no existing treaties or legislation contravene the President’s action — Bank Markazi arguably authorizes the President to subject foreign assets to execution on his own.71
Second, the Court left unclear how future courts should factor the foreign affairs context into other types of Article III questions, such as trial by military commission. The Court intimated that the foreign affairs context lent “[a]dd[ed] weight” to its determination that § 8772 did not encroach upon Article III.72 But it left unclear what weight, precisely, the foreign affairs context added: Could it justify minor encroachments on Article III where foreign affairs issues are at stake? Did it serve as a thumb on the scale to avoid finding any Article III violation where the lines were unclear? Or was it merely window dressing for a conclusion already reached?
If the foreign affairs context’s “added weight” was more than window dressing, it could arguably justify augmented jurisdiction for military commissions to try offenses not recognized under the international law of war. Article III has traditionally been understood to limit the type of offenses that may be tried by military commissions.73 The Court has invalidated tribunals established unilaterally by the President to try citizen-civilians while civilian courts remained open,74 as well as Congress’s effort to suspend the writ of habeas corpus for alien enemy combatants detained at Guantánamo.75 Meanwhile, it has upheld the power of congressionally authorized military commissions to try “offenses committed by enemy belligerents against the law of war.”76 But it is an open question whether Congress may — without violating Article III — authorize military commissions to try offenses, like conspiracy,77 that are not recognized under the international law of war.78 True, that sort of Article III intrusion (jurisdictional) is distinct from the one at issue in Bank Markazi (resolving specific, pending cases). But both issues involve questions whether Congress has infringed upon Article III territory. And some scholars have argued that “no deference is either afforded or appropriate” in determining whether trying a given offense by military commission infringes upon Article III.79 Depending on how much “added weight” foreign affairs contexts lend to Article III analyses under Bank Markazi, that conclusion may not be correct.80
These are thorny questions, and Bank Markazi does not purport to resolve them. The Court disclaimed any opinion about unilateral executive action,81 and it never revealed how much “weight” the foreign affairs context “added” to its Article III analysis (or whether that weight applies to all potential infringements on Article III, or just infringements relating to resolving pending cases). Given courts’ usual reticence to wade unnecessarily into constitutional waters,82 and given the Court’s apparently independent conclusion that § 8772 did not violate Article III,83 it is somewhat curious that the majority chose to invoke foreign affairs at all. It remains to be seen what, precisely, that invocation portends.