Klein's first principle: A proposed solution

Georgetown Law Journal, Jul 1998 by Sager, Lawrence G

LAWRENCE G. SAGER*

INTRODUCTION: THE PUZZLE OF KLEIN

Well, it isn't exactly Fermat's Last Theorem. But United States v. Klein1 is deeply puzzling. The case is 125 years old, and still seems to command the active attention of the Supreme Court.2 Klein announced an apparently important principle limiting the ability of Congress to force the judiciary's hand, and the Supreme Court apparently continues to pay wary obeisance to that principle. Apparently, because Klein typically is invoked as good law but not applicable to the case before the Court;3 and wary, because the Court never seems to be particularly secure about exactly what the principle of Klein is.

The salient facts of Klein are well known: In the wake of the Civil War, Congress enacted the Abandoned and Captured Property Act, granting the proceeds from the sale of property seized in the insurrectionary states to the original owners of that property so long as they had not "given any aid or comfort" to the rebellion.4 Application of this standard of loyalty was soon complicated by a presidential proclamation offering persons who had been engaged in the rebellion a full pardon-specifically inclusive of the restoration of their rights of property-if they took and abided by an oath of allegiance. In United States v. Padelford,5 the Supreme Court affirmed the determination of the Court of Claims that the beneficiaries of this presidential pardon were cleansed of any aid or comfort to the rebellion, and hence entitled to recover under the Abandoned and Captured Property Act. A displeased Congress responded with legislation providing that a presidential pardon could not be offered in the Court of Claims as evidence that the recipient was entitled to a recovery, that acceptance of such a pardon was to be taken as conclusive evidence that the recipient had given aid and comfort to the rebellion, and that upon proof that the claimant accepted such a pardon, the jurisdiction of the Court of Claims and of the Supreme Court on appeal would cease.

The Supreme Court, though not generally disposed to finding acts of Congress unconstitutional, found this directive doubly so. The Court's first and most emphatic rationale was that Congress had prescribed a "rule of decision" in a pending case.6 The Klein Court objected to Congress's directive on the alternate ground that it failed to give a presidential pardon the pervasive effect demanded by the Constitution.7 That ground, however, was plainly of secondary importance, and in any event, it is the first principle of Klein that is of contemporaryalbeit elusive-importance.

What exactly is Klein's first principle? Some indication of the Court's concern is offered by its contrast of the Klein circumstances with those of Pennsylvania v. Wheeling & Belmont Bridge.8 In Wheeling & Belmont Bridge, Congress had responded to the Court's determination that the bridge in question was an abatable nuisance by enacting legislation that specifically protected the bridge as a "post road." The Klein Court stressed what it saw as the crucial distinction between the cases:

[In Wheeling & Belmont Bridge, n]o arbitrary rule of decision was prescribed . .. the court was left to apply its ordinary rules to the new circumstances created by the act. In the case before us no new circumstances have been created by legislation. But the court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect precisely contrary.9

What seems to worry the Court in Klein is that Congress left standing the operative rule (persons who did not give aid and comfort to the rebellion are entitled to recover), but stipulated how the Court was to construe the receipt of a presidential pardon (as conclusive proof that the recipient gave aid and comfort). So understood, Klein's first principle threatens to exalt form over substance. It seems to depend on the dubious idea that structurally different ways of achieving the same legislative outcome lead to different constitutional results. Consider these two abstract legislative forms:

Form Alpha

Rule 1: If X is true, the claimant should prevail.

Rule 2: Only if Y is present, is X to be regarded as true. [or

Rule 21: If Y is present, then X is to be regarded as true.] Form Beta

Rule 1: If and only if Y is present, then the claimant should prevail. [or

Rule 1 1: If either X is true or Y is present, then the claimant should prevail.]

On this reading of Klein, form Alpha could be unconstitutional as a serious breach of separation of powers, even though form Beta was perfectly constitutional. But this seems highly formal and more than a bit silly.

The problem with this reading of Klein is vividly illustrated by Robertson v. Seattle Audubon Society.10 In Robertson, energetic litigation efforts by environmental groups working to protect the habitat of the northern spotted owl from timber harvesting on federally managed land had successfully tied up federal timber sales in the Pacific Northwest. In 1990, two lawsuits were pending, which between them invoked the provisions of five separate federal statutes. Eager to settle the controversy and to permit moderate harvesting of federal timber in the Northwest, Congress enacted what is popularly known as the Northwest Timber Compromise (the "Compromise").11 The Compromise was an odd graft onto the five pertinent statutes: It opened a limited temporal window, during which time increased timber harvesting on federal lands in Oregon and Washington was permitted, with the exception of a number of specified areas particularly important to the habitat of the spotted owl where no harvesting was to be permitted. Crucial to the Compromise was this key provision: