Patchak v. Zinke , 138 S. Ct. 897 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PATCHAK v. ZINKE, SECRETARY OF THE INTERIOR,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 16–498. Argued November 7, 2017—Decided February 27, 2018
Petitioner David Patchak filed suit challenging the authority of the
Secretary of the Interior to invoke the Indian Reorganization Act, 25
U.S. C. §5108, and take into trust a property (Bradley Property) on
which respondent Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians wished to build a casino. In Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (Patchak I),
this Court held that the Secretary lacked sovereign immunity and
that Patchak had standing, and it remanded the case for further pro-
ceedings. While the suit was back in District Court, Congress enact-
ed the Gun Lake Act, 128 Stat. 1913, which “reaffirmed as trust land”
the Bradley Property, §2(a), and provided that “an action . . . relating
to [that] land shall not be filed or maintained in a Federal court and
shall be promptly dismissed,” §2(b). In response, the District Court
dismissed Patchak’s suit, and the D. C. Circuit affirmed.
Held: The judgment is affirmed.
828 F.3d 995, affirmed.
JUSTICE THOMAS, joined by JUSTICE BREYER, JUSTICE ALITO, and
JUSTICE KAGAN, concluded that §2(b) of the Gun Lake Act does not
violate Article III of the Constitution. Pp. 4–16.
(a) Congress may not exercise the judicial power, see Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 218, but the legislative power
permits Congress to make laws that apply retroactively to pending
lawsuits, even when it effectively ensures that one side will win,
Bank Markazi v. Peterson, 578 U. S. ___, ___–___. Permissible exer-
cises of the legislative power and impermissible infringements of the
judicial power are distinguished by the following rule: Congress vio-
2 PATCHAK v. ZINKE
Syllabus
lates Article III when it “compel[s] . . . findings or results under old
law,” Robertson v. Seattle Audubon Soc., 503 U.S. 429, 438, but not
when it “changes the law,” Plaut, supra, at 218. Pp. 4–6.
(b) By stripping federal courts of jurisdiction over actions “relating
to” the Bradley Property, §2(b) changes the law. Pp. 6–10.
(1) Section 2(b) is best read as a jurisdiction-stripping statute. It
uses jurisdictional language, imposes jurisdictional consequences,
and applies “[n]otwithstanding any other provision of law,” including
the general grant of federal-question jurisdiction, 28 U.S. C. §1331.
And while §2(b) does not use the word “jurisdiction,” jurisdictional
statutes are not required to do so. See Sebelius v. Auburn Regional
Medical Center, 568 U.S. 145, 153. Indeed, §2(b) uses language simi-
lar to language used in other jurisdictional statutes. See, e.g., Gonza-
lez v. Thaler, 565 U.S. 134, 142. And §2(b) cannot plausibly be read
as anything other than jurisdictional. Pp. 6–7.
(2) When Congress strips federal courts of jurisdiction, it exercis-
es a valid legislative power. This Court has held that Congress gen-
erally does not violate Article III when it strips federal jurisdiction
over a class of cases, see Ex parte McCardle, 7 Wall. 506, 514, and
has reaffirmed these principles on many occasions, see, e.g., Steel Co.
v. Citizens for Better Environment, 523 U.S. 83, 94–95. Pp. 7–10.
(b) Patchak’s two arguments for why §2(b) violates Article III even
if it does strip jurisdiction—that the provision flatly directs federal
courts to dismiss lawsuits without allowing them to interpret or ap-
ply any new law, and that it attempts to interfere with this Court’s
decision in Patchak I that his suit “may proceed,” 567 U.S., at 212—
are unpersuasive. Pp. 10–15.
JUSTICE GINSBURG, joined by JUSTICE SOTOMAYOR, concluded that
Congress’ authority to forgo or retain the Government’s sovereign
immunity from suit suffices to decide this case. With Patchak I in
mind, Congress acted effectively to displace the Administrative Pro-
cedure Act’s waiver of immunity for suits against the United States—
which enabled Patchak to launch this litigation—with a contrary
command applicable to the Bradley Property. Pp. 1–2.
JUSTICE SOTOMAYOR concluded that §2(b) of the Gun Lake Act is
most naturally read as having restored the Federal Government’s
sovereign immunity from Patchak’s suit challenging the trust status
of the Bradley Property. Pp. 1–2.
THOMAS, J., announced the judgment of the Court and delivered an
opinion, in which BREYER, ALITO, and KAGAN, JJ., joined. BREYER, J.,
filed a concurring opinion. GINSBURG, J., filed an opinion concurring in
the judgment, in which SOTOMAYOR, J., joined. SOTOMAYOR, J., filed an
opinion concurring in the judgment. ROBERTS, C. J., filed a dissenting
opinion, in which KENNEDY and GORSUCH, JJ., joined.
Cite as: 583 U. S. ____ (2018) 1
Opinion of THOMAS, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–498
_________________
DAVID PATCHAK, PETITIONER v. RYAN ZINKE,
SECRETARY OF THE INTERIOR, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[February 27, 2018]
JUSTICE THOMAS announced the judgment of the Court
and delivered an opinion, in which JUSTICE BREYER,
JUSTICE ALITO, and JUSTICE KAGAN join.
Petitioner, David Patchak, sued the Secretary of the
Interior for taking land into trust on behalf of an Indian
Tribe. While his suit was pending in the District Court,
Congress enacted the Gun Lake Trust Land Reaffirmation
Act (Gun Lake Act or Act), Pub. L. 113–179, 128 Stat.
1913, which provides that suits relating to the land “shall
not be filed or maintained in a Federal court and shall be
promptly dismissed.” Patchak contends that, in enacting
this statute, Congress impermissibly infringed the judicial
power that Article III of the Constitution vests exclusively
in the Judicial Branch. Because we disagree, we affirm
the judgment of the United States Court of Appeals for the
District of Columbia Circuit.
I
The Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians (Band) resides in southwestern Michigan, near
the township of Wayland. The Band traces its relation-
ship with the United States back hundreds of years, point-
2 PATCHAK v. ZINKE
Opinion of THOMAS, J.
ing to treaties it negotiated with the Federal Government
as early as 1795. But the Secretary of the Interior did not
formally recognize the Band until 1999. See 63 Fed. Reg.
56936 (1998); 65 Fed. Reg. 13298 (2000).
After obtaining formal recognition, the Band identified a
147-acre parcel of land in Wayland, known as the Bradley
Property, where it wanted to build a casino. The Band
asked the Secretary to invoke the Indian Reorganization
Act, §5, 48 Stat. 985, 25 U.S. C. §5108, and take the Brad-
ley Property into trust.1 In 2005, the Secretary agreed
and posted a notice informing the public that the Bradley
Property would be taken into trust for the Band. See 70
Fed. Reg. 25596 (2005).
The Michigan Gambling Opposition (MichGO) sued,
alleging that the Secretary’s decision violated federal
environmental and gaming laws. After several years of
litigation, the D. C. Circuit affirmed the dismissal of
MichGo’s claims, and this Court denied certiorari. Michi-
gan Gambling Opposition v. Kempthorne, 525 F.3d 23
(2008), cert. denied, 555 U.S. 1137 (2009). In January
2009, the Secretary formally took the Bradley Property
into trust. And in February 2011, the Band opened its
casino.
Before the Secretary formally took the land into trust, a
nearby landowner, David Patchak, filed another lawsuit
challenging the Secretary’s decision. Invoking the Admin-
istrative Procedure Act, 5 U.S. C. §§702, 706(2), Patchak
alleged that the Secretary lacked statutory authority to
take the Bradley Property into trust for the Band. The
Indian Reorganization Act does not allow the Secretary to
take land into trust for tribes that were not under federal
——————
1 Federal law allows Indian tribes to operate casinos on “Indian
lands,” 25 U.S. C. §2710, which includes lands “held in trust by the
United States for the benefit of any Indian tribe,” §2703(4)(B).
Cite as: 583 U. S. ____ (2018) 3
Opinion of THOMAS, J.
jurisdiction when the statute was enacted in 1934. See
Carcieri v. Salazar, 555 U.S. 379, 382–383 (2009). The
Band was not federally recognized until 1999, which
Patchak argued was more than 65 years too late. Based
on this alleged statutory violation, Patchak sought to
reverse the Secretary’s decision to take the Bradley Prop-
erty into trust.
The Secretary raised preliminary objections to Patchak’s
suit, contending that it was barred by sovereign immunity
and that Patchak lacked prudential standing to bring it.
The District Court granted the Secretary’s motion to
dismiss, but the D. C. Circuit reversed. Patchak v. Sala-
zar, 646 F. Supp. 2d 72 (DC 2009), rev’d, 632 F.3d 702
(2011). This Court granted certiorari and affirmed the
D. C. Circuit. Match-E-Be-Nash-She-Wish Band of Potta-
watomi Indians v. Patchak, 567 U.S. 209 (2012) (Patchak
I ). This Court’s decision in Patchak I held that Congress
had waived the Secretary’s sovereign immunity from suits
like Patchak’s. Id., at 215–224. It also held that Patchak
had prudential standing because his suit arguably fell
within the “zone of interests” protected by the Indian
Reorganization Act. Id., at 224–228. Because Patchak
had standing and the Secretary lacked immunity, this
Court concluded that “Patchak’s suit may proceed,” id., at
212, and remanded for further proceedings, id., at 228.
In September 2014, while Patchak’s suit was back in the
District Court, Congress enacted the Gun Lake Act, 128
Stat. 1913. Section 2(a) of the Act states that the Bradley
Property “is reaffirmed as trust land, and the actions of
the Secretary of the Interior in taking that land into trust
are ratified and confirmed.” Section 2(b) then provides the
following:
“NO CLAIMS.—Notwithstanding any other provision of
law, an action (including an action pending in a Fed-
eral court as of the date of enactment of this Act) re-
4 PATCHAK v. ZINKE
Opinion of THOMAS, J.
lating to the land described in subsection (a) shall not
be filed or maintained in a Federal court and shall be
promptly dismissed.”
Based on §2(b), the District Court entered summary judg-
ment against Patchak and dismissed his suit for lack of
jurisdiction. 109 F. Supp. 3d 152 (DC 2015).
The D. C. Circuit affirmed. Patchak v. Jewell, 828 F.3d
995 (2016). It held that “[t]he language of the Gun Lake
Act makes plain that Congress has stripped federal courts
of subject matter jurisdiction” over suits, like Patchak’s,
that relate to the Bradley Property. Id., at 1001. The
D. C. Circuit rejected Patchak’s argument that §2(b) vio-
lates Article III of the Constitution. Id., at 1001–1003.
Article III prohibits Congress from “direct[ing] the result
of pending litigation,” the D. C. Circuit reasoned, but it
does not prohibit Congress from “ ‘supply[ing] new law.’ ”
Id., at 1002 (quoting Robertson v. Seattle Audubon Soc.,
503 U.S. 429, 439 (1992)). Section 2(b) supplies new law:
“[I]f an action relates to the Bradley Property, it must
promptly be dismissed.” 828 F.3d, at 1003.
We granted certiorari to review whether §2(b) violates
Article III of the Constitution.2 See 581 U. S. ___ (2017).
Because it does not, we now affirm.
II
A
The Constitution creates three branches of Government
and vests each branch with a different type of power. See
Art. I, §1; Art. II, §1, cl. 1; Art. III, §1. “To the legislative
department has been committed the duty of making laws;
to the executive the duty of executing them; and to the
——————
2 Patchak does not challenge the constitutionality of §2(a) of the Gun
Lake Act. See Reply Brief 7; Tr. of Oral Arg. 5. We thus limit our
analysis to §2(b).
Cite as: 583 U. S. ____ (2018) 5
Opinion of THOMAS, J.
judiciary the duty of interpreting and applying them in
cases properly brought before the courts.” Massachusetts
v. Mellon, 262 U.S. 447, 488 (1923); see also Wayman v.
Southard, 10 Wheat. 1, 46 (1825) (Marshall, C. J.) (“[T]he
legislature makes, the executive executes, and the judici-
ary construes the law”). By vesting each branch with an
exclusive form of power, the Framers kept those powers
separate. See INS v. Chadha, 462 U.S. 919, 946 (1983).
Each branch “exercise[s] . . . the powers appropriate to its
own department,” and no branch can “encroach upon the
powers confided to the others.” Kilbourn v. Thompson,
103 U.S. 168, 191 (1881). This system prevents “[t]he
accumulation of all powers, legislative, executive, and
judiciary, in the same hands,” The Federalist No. 47,
p. 301 (C. Rossiter ed. 1961) (J. Madison)—an accumula-
tion that would pose an inherent “threat to liberty,” Clin-
ton v. City of New York, 524 U.S. 417, 450 (1998)
(KENNEDY, J., concurring).
The separation of powers, among other things, prevents
Congress from exercising the judicial power. See Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995). One
way that Congress can cross the line from legislative
power to judicial power is by “usurp[ing] a court’s power to
interpret and apply the law to the [circumstances] before
it.” Bank Markazi v. Peterson, 578 U. S. ___, ___ (2016)
(slip op., at 12). The simplest example would be a statute
that says, “In Smith v. Jones, Smith wins.” See id., at
___–___, n. 17 (slip op., at 12–13, n. 17). At the same time,
the legislative power is the power to make law, and Con-
gress can make laws that apply retroactively to pending
lawsuits, even when it effectively ensures that one side
wins. See id., at ___–___ (slip op., at 15–19).
To distinguish between permissible exercises of the
legislative power and impermissible infringements of the
judicial power, this Court’s precedents establish the fol-
lowing rule: Congress violates Article III when it “com-
6 PATCHAK v. ZINKE
Opinion of THOMAS, J.
pel[s] . . . findings or results under old law.” Seattle
Audubon, supra, at 438. But Congress does not violate
Article III when it “changes the law.” Plaut, supra, at 218.
B
Section 2(b) changes the law. Specifically, it strips
federal courts of jurisdiction over actions “relating to” the
Bradley Property. Before the Gun Lake Act, federal courts
had jurisdiction to hear these actions. See 28 U.S. C.
§1331. Now they do not. This kind of legal change is well
within Congress’ authority and does not violate Article III.
1
Section 2(b) strips federal jurisdiction over suits relating
to the Bradley Property. The statute uses jurisdictional
language. It states that an “action” relating to the Brad-
ley Property “shall not be filed or maintained in a Federal
court.” It imposes jurisdictional consequences: Actions
relating to the Bradley Property “shall be promptly dis-
missed.” See Ex parte McCardle, 7 Wall. 506, 514 (1869)
(“[W]hen [jurisdiction] ceases to exist, the only function
remaining to the court is that of announcing the fact and
dismissing the cause”). Section 2(b) has no exceptions. Cf.
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 165 (2010).
And it applies “[n]otwithstanding any other provision of
law,” including the general grant of federal-question juris-
diction, 28 U.S. C. §1331. Although §2(b) does not use the
word “jurisdiction,” this Court does not require jurisdic-
tional statutes to “incant magic words.” Sebelius v. Au-
burn Regional Medical Center, 568 U.S. 145, 153 (2013).
Indeed, §2(b) uses language similar to other statutes that
this Court has deemed jurisdictional. See, e.g., Gonzalez
v. Thaler, 565 U.S. 134, 142 (2012) (“ ‘an appeal may not
be taken’ ” (quoting 28 U.S. C. §2253(c)(1))); Keene Corp. v.
United States, 508 U.S. 200, 208–209 (1993) (“ ‘[n]o person
shall file or prosecute’ ” (quoting 36 Stat. 1138)); Wein-
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Opinion of THOMAS, J.
berger v. Salfi, 422 U.S. 749, 756 (1975) (“ ‘[n]o action . . .
shall be brought under [28 U.S. C. §1331]’ ” (quoting 42
U.S. C. §405(h))).
Our conclusion that §2(b) is jurisdictional is bolstered by
the fact that it cannot plausibly be read as anything else.
Section 2(b) is not one of the nonjurisdictional rules that
this Court’s precedents have identified as “important and
mandatory” but not governing “a court’s adjudicatory
capacity.” Henderson v. Shinseki, 562 U.S. 428, 435
(2011). Section 2(b) does not identify an “element of [the]
plaintiff’s claim for relief” or otherwise define its “substan-
tive adequacy.” Arbaugh v. Y & H Corp., 546 U.S. 500,
516, 504 (2006). Nor is it a “claim-processing rule,” like a
filing deadline or an exhaustion requirement, that re-
quires the parties to “take certain procedural steps at
certain specified times.” Henderson, supra, at 435. In-
stead, §2(b) completely prohibits actions relating to the
Bradley Property. Because §2(b) addresses “a court’s
competence to adjudicate a particular category of cases,”
Wachovia Bank, N. A. v. Schmidt, 546 U.S. 303, 316
(2006), it is best read as a jurisdiction-stripping statute.
2
Statutes that strip jurisdiction “chang[e] the law” for the
purpose of Article III, Plaut, supra, at 218, just as much as
other exercises of Congress’ legislative authority. Article I
permits Congress “[t]o constitute Tribunals inferior to the
supreme Court,” §8, and Article III vests the judicial
power “in one supreme Court, and in such inferior Courts
as the Congress may from time to time ordain and estab-
lish,” §1. These provisions reflect the so-called Madison-
ian Compromise, which resolved the Framers’ disagree-
ment about creating lower federal courts by leaving that
decision to Congress. See Printz v. United States, 521
U.S. 898, 907 (1997); 1 Records of the Federal Convention
of 1787, p. 125 (M. Farrand ed. 1911). Congress’ greater
8 PATCHAK v. ZINKE
Opinion of THOMAS, J.
power to create lower federal courts includes its lesser
power to “limit the jurisdiction of those Courts.” United
States v. Hudson, 7 Cranch 32, 33 (1812); accord, Lockerty
v. Phillips, 319 U.S. 182, 187 (1943). So long as Congress
does not violate other constitutional provisions, its “control
over the jurisdiction of the federal courts” is “plenary.”
Trainmen v. Toledo, P. & W. R. Co., 321 U.S. 50, 63–64
(1944); see also Bowles v. Russell, 551 U.S. 205, 212
(2007) (“Within constitutional bounds, Congress decides
what cases the federal courts have jurisdiction to consider”).
Thus, when Congress strips federal courts of jurisdic-
tion, it exercises a valid legislative power no less than
when it lays taxes, coins money, declares war, or invokes
any other power that the Constitution grants it.
Indeed, this Court has held that Congress generally
does not violate Article III when it strips federal jurisdic-
tion over a class of cases.3 Shortly after the Civil War, for
example, Congress repealed this Court’s appellate juris-
diction over certain habeas corpus cases. See Act of Mar.
27, 1868, ch. 34, §2, 15 Stat. 44; see also U. S. Const.,
Art. III, §2 (permitting Congress to make “Exceptions” to
this Court’s appellate jurisdiction). William McCardle, a
military prisoner whose appeal was pending at the time,
argued that the repealing statute was “an exercise by the
Congress of judicial power.” 7 Wall., at 510. This Court
disagreed. Jurisdiction-stripping statutes, the Court
explained, do not involve “the exercise of judicial power” or
“legislative interference with courts in the exercising of
continuing jurisdiction.” Id., at 514. Because jurisdiction
——————
3 Jurisdiction-stripping statutes can violate other provisions of the
Constitution. And, under our precedents, jurisdiction-stripping stat-
utes can violate Article III if they “attemp[t] to direct the result” by
effectively altering legal standards that Congress is “powerless to
prescribe.” Bank Markazi v. Peterson, 578 U. S. ___, ___ (2016) (slip
op., at 15) (citing United States v. Klein, 13 Wall. 128, 146–147 (1872)).
Cite as: 583 U. S. ____ (2018) 9
Opinion of THOMAS, J.
is the “power to declare the law” in the first place, “judicial
duty is not less fitly performed by declining ungranted
jurisdiction than in exercising firmly that which the Con-
stitution and the laws confer.” Id., at 514–515.4
This Court has reaffirmed these principles on many
occasions. Congress generally does not infringe the judi-
cial power when it strips jurisdiction because, with limited
exceptions, a congressional grant of jurisdiction is a pre-
requisite to the exercise of judicial power. See Steel Co. v.
Citizens for Better Environment, 523 U.S. 83, 94–95
(1998) (“The requirement that jurisdiction be established
——————
4 The dissent appears to disagree with McCardle, questions the mo-
tives of the unanimous Court that decided it, asserts that it is “incon-
sistent” with Klein, and distinguishes it on the ground that the statute
there “did not foreclose all avenues of judicial review.” Post, at 12–13
(opinion of ROBERTS, C. J.). But the core holding of McCardle—that
Congress does not exercise the judicial power when it strips jurisdiction
over a class of cases—has never been questioned, has been repeatedly
reaffirmed, and was reaffirmed in Klein itself. See 13 Wall., at 145
(“[T]here could be no doubt” that Congress can “den[y] the right of
appeal in a particular class of cases”). And if there is any inconsistency
between the two, this Court has said that it is Klein—not McCardle—
that “cannot [be] take[n] . . . ‘at face value.’ ” Bank Markazi, 578 U. S.,
at ___ (slip op., at 15) (quoting R. Fallon, J. Manning, D. Meltzer, & D.
Shapiro, Hart and Wechsler’s The Federal Courts and the Federal
System 324 (7th ed. 2015)). Moreover, it is true that McCardle empha-
sized that the statute there did not withdraw “the whole appellate
power of the court, in cases of habeas corpus.” 7 Wall., at 515 (empha-
sis added). But McCardle’s reservation, this Court later explained, was
responding to a potential problem under the Suspension Clause, not a
potential problem under Article III. See Ex parte Yerger, 8 Wall. 85,
102–103 (1869) (“We agree that [jurisdiction] is given subject to excep-
tion and regulation by Congress; but it is too plain for argument that
the denial to this court of appellate jurisdiction in this class of cases
must greatly weaken the efficacy of the writ”); id., at 96 (“It would have
been . . . a remarkable anomaly if this court . . . had been denied, under
a constitution which absolutely prohibits suspension of the writ, except
under extraordinary exigencies, that power in cases of alleged unlawful
restraint”).
10 PATCHAK v. ZINKE
Opinion of THOMAS, J.
as a threshold matter ‘spring[s] from the nature and limits
of the judicial power of the United States’ ” (quoting Mans-
field, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382
(1884))); Cary v. Curtis, 3 How. 236, 245 (1845) (“[T]he
judicial power of the United States . . . is (except in enu-
merated instances, applicable exclusively to this court)
dependent . . . entirely upon the action of Congress”);
Hudson, supra, at 33 (similar). “To deny this position”
would undermine the separation of powers by “elevat[ing]
the judicial over the legislative branch.” Cary, supra, at
245. Congress’ power over federal jurisdiction is “an es-
sential ingredient of separation and equilibration of pow-
ers, restraining the courts from acting at certain times,
and even restraining them from acting permanently re-
garding certain subjects.” Steel Co., supra, at 101.
In sum, §2(b) strips jurisdiction over suits relating to
the Bradley Property. It is a valid exercise of Congress’
legislative power. And because it changes the law, it
does not infringe the judicial power. The constitutionality
of jurisdiction-stripping statutes like this one is well
established.
III
Patchak does not dispute Congress’ power to withdraw
jurisdiction from the federal courts. He instead raises two
arguments why §2(b) violates Article III, even if it strips
jurisdiction. First, relying on United States v. Klein, 13
Wall. 128 (1872), Patchak argues that §2(b) flatly directs
federal courts to dismiss lawsuits without allowing them
to interpret or apply any new law. Second, relying on
Plaut, 514 U.S. 211, Patchak argues that §2(b) attempts
to interfere with this Court’s decision in Patchak I—
specifically, its conclusion that his suit “may proceed,” 567
U.S., at 212. We reject both arguments.
Cite as: 583 U. S. ____ (2018) 11
Opinion of THOMAS, J.
A
Section 2(b) does not flatly direct federal courts to dis-
miss lawsuits under old law. It creates new law for suits
relating to the Bradley Property, and the District Court
interpreted and applied that new law in Patchak’s suit.
Section 2(b)’s “relating to” standard effectively guaranteed
that Patchak’s suit would be dismissed. But “a statute
does not impinge on judicial power when it directs courts
to apply a new legal standard to undisputed facts.” Bank
Markazi, 578 U. S., at ___ (slip op., at 17). “[I]t is not any
the less a case or controversy upon which a court pos-
sessing the federal judicial power may rightly give judg-
ment” when the arguments before the court are “uncon-
tested or incontestable.” Pope v. United States, 323 U.S.
1, 11 (1944).
Patchak argues that the last four words of §2(b)—“shall
be promptly dismissed”—direct courts to reach a particu-
lar outcome. But a statute does not violate Article III
merely because it uses mandatory language. See Seattle
Audubon, 503 U.S., at 439. Instead of directing outcomes,
the mandatory language in §2(b) “simply imposes the
consequences” of a court’s determination that it lacks
jurisdiction because a suit relates to the Bradley Property.
Miller v. French, 530 U.S. 327, 349 (2000); see McCardle,
7 Wall., at 514.5
Patchak compares §2(b) to the statute this Court held
unconstitutional in Klein. In that case, the administrator
——————
5 To prove that it does not change the law, Patchak repeatedly asserts
that §2(b) does not amend any “generally applicable” statute. Brief for
Petitioner 11; Reply Brief 1, 4, 9. But this Court rejected that same
argument in Seattle Audubon. Congress can change a law “directly,” or
it can change a law indirectly by passing “an entirely separate statute.”
503 U.S., at 439–440. Either way, it changes the law. The same is
true for jurisdictional statutes. See Insurance Co. v. Ritchie, 5 Wall.
541 (1867).
12 PATCHAK v. ZINKE
Opinion of THOMAS, J.
of the estate of V. F. Wilson, a former Confederate soldier,
sued to recover the value of some cotton that the Govern-
ment had seized during the war. 13 Wall., at 132. The
relevant statute required claimants to prove their loyalty
in order to reclaim their property. Ch. 120, §3, 12 Stat.
820. Wilson had received a pardon before he died, 13
Wall., at 132, and this Court had held that pardons con-
clusively prove loyalty under the statute, see United
States v. Padelford, 9 Wall. 531, 543 (1870). But after
Wilson’s administrator secured a judgment in his favor, 13
Wall., at 132, Congress passed a statute making pardons
proof of disloyalty and declaring that, if a claimant had
accepted one, “the jurisdiction of the court in the case shall
cease, and the court shall forthwith dismiss the suit of
such claimant.” Act of July 12, 1870, 16 Stat. 235. If the
court had already entered judgment in favor of a pardoned
claimant and the Government had appealed, the statute
instructed this Court to dismiss the whole suit for lack of
jurisdiction. See ibid. Klein held that this statute in-
fringed the executive power by attempting to “change the
effect of . . . a pardon.” Id., at 148. Klein also held that
the statute infringed the judicial power, see id., at 147,
although its reasons for this latter holding were not en-
tirely clear.
This Court has since explained that “the statute in Klein
infringed the judicial power, not because it left too little
for courts to do, but because it attempted to direct the
result without altering the legal standards governing the
effect of a pardon—standards Congress was powerless to
prescribe.” Bank Markazi, supra, at ___ (slip op., at 15).
Congress had no authority to declare that pardons are not
evidence of loyalty, so it could not achieve the same result
by stripping jurisdiction whenever claimants cited pardons
as evidence of loyalty. See Klein, 13 Wall., at 147–148.
Nor could Congress confer jurisdiction to a federal court
but then strip jurisdiction from that same court once the
Cite as: 583 U. S. ____ (2018) 13
Opinion of THOMAS, J.
court concluded that a pardoned claimant should prevail
under the statute. See id., at 146–147.
Patchak’s attempts to compare §2(b) to the statute in
Klein are unpersuasive. Section 2(b) does not attempt to
exercise a power that the Constitution vests in another
branch. And unlike the selective jurisdiction-stripping
statute in Klein, §2(b) strips jurisdiction over every suit
relating to the Bradley Property. Indeed, Klein itself
explained that statutes that do “nothing more” than strip
jurisdiction over “a particular class of cases” are constitu-
tional. Id., at 145. That is precisely what §2(b) does.
B
Section 2(b) does not unconstitutionally interfere with
this Court’s decision in Patchak I. Article III, this Court
explained in Plaut, prohibits Congress from “retroactively
commanding the federal courts to reopen final judgments.”
514 U.S., at 219. But Patchak I did not finally conclude
Patchak’s case. See Bradley v. School Bd. of Richmond,
416 U.S. 696, 711, n. 14 (1974). When this Court said
that his suit “may proceed,” 567 U.S., at 212, it meant
that the Secretary’s preliminary defenses lacked merit and
that Patchak could return to the District Court for further
proceedings. It did not mean that Congress was powerless
to change the law that governs his case. As this Court
emphasized in Plaut, Article III does not prohibit Con-
gress from enacting new laws that apply to pending civil
cases. See 514 U.S., at 226–227. When a new law clearly
governs pending cases, Article III does not prevent courts
from applying it because “each court, at every level, must
‘decide according to existing laws.’ ” Ibid. (quoting United
States v. Schooner Peggy, 1 Cranch 103, 109 (1801)). This
principle applies equally to statutes that strip jurisdiction.
See Landgraf v. USI Film Products, 511 U.S. 244, 274
(1994); Kline v. Burke Constr. Co., 260 U.S. 226, 234
(1922); Hallowell v. Commons, 239 U.S. 506, 509 (1916).
14 PATCHAK v. ZINKE
Opinion of THOMAS, J.
Because §2(b) expressly references “pending” cases, it
applies to Patchak’s suit. And because Patchak’s suit is
not final, applying §2(b) here does not offend Article III.6
Of course, we recognize that the Gun Lake Act was a
response to this Court’s decision in Patchak I. The text of
the Act, after all, cites both the administrative decision
and the property at issue in that case. See §§2(a)–(b).
And we understand why Patchak would view the Gun
Lake Act as unfair. By all accounts, the Band exercised
its political influence to persuade Congress to enact a
narrow jurisdiction-stripping provision that effectively
ends all lawsuits threatening its casino, including
Patchak’s.
But the question in this case is “[n]ot favoritism, nor
even corruption, but power.” Plaut, supra, at 228; see also
McCardle, 7 Wall., at 514 (“We are not at liberty to inquire
into the motives of the legislature. We can only examine
into its power under the Constitution”). Under this
Court’s precedents, Congress has the power to “apply
newly enacted, outcome-altering legislation in pending
civil cases,” Bank Markazi, 578 U. S., at ___ (slip op., at
16), even when the legislation “govern[s] one or a very
small number of specific subjects,” id., at ___ (slip op., at
21). For example, this Court has upheld narrow statutes
that identified specific cases by caption and docket num-
ber in their text. See id., at ___ (slip op., at 19); Seattle
Audubon, 503 U.S., at 440. And this Court has approv-
ingly cited a D. C. Circuit decision, which upheld a statute
that retroactively stripped jurisdiction over suits challeng-
ing “a single memorial.” Bank Markazi, supra, at ___ (slip
——————
6 Retroactivelegislation can violate other provisions of the Constitu-
tion, such as the Ex Post Facto Clause and the Bills of Attainder
Clause. See Bank Markazi, 578 U. S., at ___ (slip op., at 16). But
Patchak’s Article III claim is the only challenge to §2(b) before us.
Cite as: 583 U. S. ____ (2018) 15
Opinion of THOMAS, J.
op., at 22) (citing National Coalition To Save Our Mall v.
Norton, 269 F.3d 1092 (2001)). If these targeted statutes
did not cross the line from legislative to judicial power,
then §2(b) does not either.
IV
The dissent offers a different theory for why §2(b) vio-
lates Article III. A statute impermissibly exercises the
judicial power, the dissent contends, when it “targets” a
particular suit and “manipulates” jurisdiction to direct the
outcome, “practical[ly] operat[es]” to affect only one suit,
and announces a legal standard that does not “imply some
measure of generality” or “preserv[e] . . . an adjudicative
role for the courts.” Post, at 8, 11.
We doubt that the constitutional line separating the
legislative and judicial powers turns on factors such as a
court’s doubts about Congress’ unexpressed motives, the
number of “cases [that] were pending when the provision
was enacted,” or the time left on the statute of limitations.
Post, at 8. But even if it did, we disagree with the dis-
sent’s characterization of §2(b). Nothing on the face of
§2(b) is limited to Patchak’s case, or even to his challenge
under the Indian Reorganization Act. Instead, the text
extends to all suits “relating to” the Bradley Property.
Thus, §2(b) survives even under the dissent’s theory: It
“prospectively govern[s] an open-ended class of disputes,”
post, at 6, and its “relating to” standard “preserv[es] . . . an
adjudicative role for the courts,” post, at 11. While §2(b)’s
“relating to” standard is not difficult to interpret or apply,
this Court’s precedents encourage Congress to draft juris-
dictional statutes in this manner. See Hertz Corp. v.
Friend, 559 U.S. 77, 94 (2010) (“[A]dministrative simplic-
ity is a major virtue in a jurisdictional statute. . . . [C]ourts
benefit from straightforward rules under which they can
16 PATCHAK v. ZINKE
Opinion of THOMAS, J.
readily assure themselves of their power to hear a case”).7
* * *
We conclude that §2(b) of the Gun Lake Act does not
violate Article III of the Constitution. The judgment of the
Court of Appeals is, therefore, affirmed.
It is so ordered.
——————
7 We also doubt that the statute this Court upheld in Bank Markazi
would survive under the dissent’s theory. The dissent notes that the
statute there affected “16 different actions,” while the statute here
affects “a single pending case.” Post, at 8. But if the problem is Con-
gress “pick[ing] winners and losers in pending litigation,” post, at 14,
then it seems backwards to conclude that Congress is on stronger
constitutional footing when it picks winners and losers in more pending
cases.
Cite as: 583 U. S. ____ (2018) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–498
_________________
DAVID PATCHAK, PETITIONER v. RYAN ZINKE,
SECRETARY OF THE INTERIOR, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[February 27, 2018]
JUSTICE BREYER, concurring.
The statutory context makes clear that this is not sim-
ply a case in which Congress has said, “In Smith v. Jones,
Smith wins.” See post, at 1, 11–12 (ROBERTS, C. J., dis-
senting). In 2005, the Secretary of the Interior announced
her decision to take the Bradley Property into trust for an
Indian Tribe, the Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians. See 70 Fed. Reg. 25596 (2005). The
petitioner brought suit, claiming that the Secretary lacked
the statutory authority to do so. See Carcieri v. Salazar,
555 U.S. 379, 382 (2009) (the Indian Reorganization Act
gives the Secretary authority to take land into trust only
for a tribe under federal jurisdiction in 1934).
Congress then enacted the law here at issue. Gun Lake
Trust Land Reaffirmation Act, Pub. L. 113–179, 128 Stat.
1913. (I have placed the full text of that law in the Ap-
pendix, infra.) The first part “reaffirm[s],” “ratifie[s],” and
“confirm[s]” the Secretary’s “actions in taking” the Bradley
Property “into trust,” as well as the status of the Bradley
Property “as trust land.” §2(a). The second part says that
actions “relating to” the Bradley Property “shall not be
filed or maintained in a Federal court and shall be
promptly dismissed.” §2(b). Read together, Congress first
made certain that federal statutes gave the Secretary the
authority to take the Bradley Property into trust, and
2 PATCHAK v. ZINKE
BREYER, J., concurring
second tried to dot all the i’s by adding that federal courts
shall not hear cases challenging the land’s trust status.
The second part, the jurisdictional part, perhaps gilds the
lily, perhaps simplifies judicial decisionmaking (the judge
need only determine whether a lawsuit relates to the
Bradley Property), but, read in context, it does no more
than provide an alternative legal standard for courts to
apply that seeks the same real-world result as does the
first part: The Bradley Property shall remain in trust.
The petitioner does not argue that Congress acted un-
constitutionally by ratifying the Secretary’s actions and
the land’s trust status, and I am aware of no substantial
argument to that effect. See United States v. Heinszen &
Co., 206 U.S. 370, 382–383, 387 (1907) (Congress may
retroactively ratify Government action that was unauthor-
ized when taken); Brief for Federal Courts and Federal
Indian Law Scholars as Amici Curiae 6–11 (citing numer-
ous examples of tribe-specific Indian-land bills). The
jurisdictional part of the statute therefore need not be
read to do more than eliminate the cost of litigating a
lawsuit that will inevitably uphold the land’s trust status.
This case is consequently unlike United States v. Klein,
13 Wall. 128 (1872), where this Court held unconstitutional
a congressional effort to use its jurisdictional authority
to reach a result (involving the pardon power) that it could
not constitutionally reach directly. Id., at 146; see Bank
Markazi v. Peterson, 578 U. S. ___, ___, and n. 19 (2016)
(slip op., at 15, and n. 19). And the plurality, in today’s
opinion, carefully distinguishes from the case before us
other circumstances where Congress’ use of its jurisdic-
tional power could prove constitutionally objectionable.
Ante, at 8, and n. 3, 14, n. 6. Here Congress has used its
jurisdictional power to supplement, without altering,
action that no one has challenged as unconstitutional.
Under these circumstances, I find its use of that power
unobjectionable. And, on this understanding, I join the
plurality’s opinion.
Cite as: 583 U. S. ____ (2018) 3
BREYER
Appendix , J., concurring
to opinion of BREYER, J.
APPENDIX
Public Law 113–179
“SECTION 1. SHORT TITLE.
“This Act may be cited as the ‘Gun Lake Trust Land
Reaffirmation Act’.
“SEC. 2. REAFFIRMATION OF INDIAN TRUST LAND.
“(a) IN GENERAL.—The land taken into trust by the
United States for the benefit of the Match-E-Be-Nash-She-
Wish Band of Pottawatomi Indians and described in the
final Notice of Determination of the Department of the
Interior (70 Fed. Reg. 25596 (May 13, 2005)) is reaffirmed
as trust land, and the actions of the Secretary of the In-
terior in taking that land into trust are ratified and
confirmed.
“(b) NO CLAIMS.—Notwithstanding any other provision
of law, an action (including an action pending in a Federal
court as of the date of enactment of this Act) relating to
the land described in subsection (a) shall not be filed or
maintained in a Federal court and shall be promptly
dismissed.
“(c) RETENTION OF FUTURE RIGHTS.—Nothing in this
Act alters or diminishes the right of the Match-E-Be-
Nash-She-Wish Band of Pottawatomi Indians from seek-
ing to have any additional land taken into trust by the
United States for the benefit of the Band.”
Cite as: 583 U. S. ____ (2018) 1
GINSBURG, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–498
_________________
DAVID PATCHAK, PETITIONER v. RYAN ZINKE,
SECRETARY OF THE INTERIOR, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[February 27, 2018]
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR
joins, concurring in the judgment.
What Congress grants, it may retract. That is undoubt-
edly true of the Legislature’s authority to forgo or retain
the Government’s sovereign immunity from suit. The
Court need venture no further to decide this case.
Patchak sought relief from the Secretary of the Interior
“other than money damages,” 5 U.S. C. §702; because he
confined his complaint to declaratory and injunctive relief,
the Administrative Procedure Act’s (APA) waiver of the
Federal Government’s immunity from suit, ibid., enabled
Patchak to launch this litigation. Match-E-Be-Nash-She-
Wish Band of Pottawatomi Indians v. Patchak, 567 U.S.
209, 215–224 (2012) (Patchak I ) (APA waiver of immunity
covers Patchak’s suit). But consent of the United States to
suit may be withdrawn “at any time.” Lynch v. United
States, 292 U.S. 571, 581 (1934); see Maricopa County v.
Valley Nat. Bank of Phoenix, 318 U.S. 357, 362 (1943)
(“[T]he power to withdraw the privilege of suing the
United States or its instrumentalities knows no limitations.”).
Congress’ authority to reinstate sovereign immunity, this
Court has recognized, extends to pending litigation. Dis-
trict of Columbia v. Eslin, 183 U.S. 62, 65–66 (1901).
Just as it is Congress’ prerogative to consent to suit, so
too is it within Congress’ authority to withdraw consent
2 PATCHAK v. ZINKE
GINSBURG, J., concurring in judgment
once given. Retraction of consent to be sued (effectively
restoration of immunity) is just what Congress achieved
when it directed in the Gun Lake Act: “Notwithstanding
any other provision of law, an action . . . relating to the
[Bradley Property],” including any pending action, “shall
not be . . . maintained in a Federal Court and shall be
promptly dismissed.” Gun Lake Trust Land Reaffirmation
Act, Pub. L. 113–179, §2(b), 128 Stat. 1913; see H. R. Rep.
No. 113–590, p. 2 (2014) (framed with Patchak I in view,
§2(b) provides an “unusually broad grant of immunity
from lawsuits pertaining to the Bradley Property” (empha-
sis added)); S. Rep. No. 113–194, p. 2 (2014) (discussing
Patchak I ); Patchak I, 567 U.S., at 223–224 (argument
that allowing suits challenging land trust acquisitions
would harm tribe’s economic well-being “is not without
force, but must be addressed to Congress”). Notably, the
language Congress employed in the Gun Lake Act (any
“action . . . relating to the [Bradley Property] . . . shall be
promptly dismissed”) is the mirror image of the APA’s
immunity waiver, which instructs that suits “against the
United States” for declaratory or injunctive relief “shall
not be dismissed.” 5 U.S. C. §702 (emphasis added).
In short, Congress acted effectively to displace the
APA’s waiver of immunity for suits against the United
States with a contrary command applicable to the Bradley
Property: No action concerning the trust status of that
property is currently attended by the sovereign’s consent
to suit. For that reason, I would affirm the judgment of
the Court of Appeals for the District of Columbia Circuit
upholding the District Court’s dismissal of Patchak’s
case.*
——————
*Patchak argues that restoration of sovereign immunity would not
dispose of his suit, for his claim is that federal officials have acted in
excess of their statutory authority. Reply Brief 18. The argument fails
because his action is, “in effect, a suit against the sovereign.” Larson v.
Domestic and Foreign Commerce Corp., 337 U.S. 682, 687 (1949); see
Cite as: 583 U. S. ____ (2018) 3
GINSBURG, J., concurring in judgment
——————
Block v. North Dakota ex rel. Board of Univ. and School Lands, 461
U.S. 273, 281–282 (1983) (officer suit is an improper vehicle for resolv-
ing property disputes with the United States); id., at 284–286 (officer
suit unavailable to circumvent the Quiet Title Act’s reservations of
immunity).
Cite as: 583 U. S. ____ (2018) 1
SOTOMAYOR
SOTOMAYOR , J., concurring
, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–498
_________________
DAVID PATCHAK, PETITIONER v. RYAN ZINKE,
SECRETARY OF THE INTERIOR, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[February 27, 2018]
JUSTICE SOTOMAYOR, concurring in the judgment.
I agree with the dissent that Congress may not achieve
through jurisdiction stripping what it cannot permissibly
achieve outright, namely, directing entry of judgment for a
particular party. I also agree that an Act that merely
deprives federal courts of jurisdiction over a single pro-
ceeding is not enough to be considered a change in the law
and that any statute that portends to do so should be
viewed with great skepticism. See post, at 11–12 (opinion
of ROBERTS, C. J.). I differ with the dissent’s ultimate
conclusion only because, as JUSTICE GINSBURG explains,
the Gun Lake Trust Land Reaffirmation Act (Gun Lake
Act), Pub. L. 113–179, 128 Stat. 1913, should not be read
to strip the federal courts of jurisdiction but rather to
restore the Federal Government’s sovereign immunity.
See ante, at 1–2 (opinion concurring in judgment).
In the Court’s first decision in this case, Match-E-Be-
Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
567 U.S. 209 (2012), the sole issue of disagreement
between the majority and the dissent was whether the
United States had waived its sovereign immunity from
Patchak’s lawsuit. The majority held that Congress had
done so in the Administrative Procedure Act, 5 U.S. C.
§702, see 567 U.S., at 215–224, whereas the dissent con-
cluded it had not because the case fell within the excep-
2 PATCHAK v. ZINKE
SOTOMAYOR, J., concurring in judgment
tions to the Government’s waiver of sovereign immunity
under the Quiet Title Act, 28 U.S. C. §2409a(a), that
apply when trust or restricted Indian lands are at issue,
see 567 U.S., at 228–238 (opinion of SOTOMAYOR, J.). The
majority recognized, however, that Congress was free to
reinstate the Government’s sovereign immunity from suits
like Patchak’s, observing that “[p]erhaps Congress
would—perhaps Congress should” bar “the full range of
lawsuits pertaining to the Government’s ownership of
land,” regardless of whether the plaintiff claims owner-
ship. Id., at 224. Not long after, Congress enacted the
Gun Lake Act.
In addition to the reasons set forth by JUSTICE
GINSBURG, ante, at 2, given this context, §2(b) of the Gun
Lake Act is most naturally read as having restored the
Federal Government’s sovereign immunity from Patchak’s
suit challenging the trust status of the Bradley Property.
That conclusion avoids the separation-of-powers concerns
raised here about jurisdiction stripping. On this
basis alone, I would affirm the judgment of the Court of
Appeals.
Cite as: 583 U. S. ____ (2018) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–498
_________________
DAVID PATCHAK, PETITIONER v. RYAN ZINKE,
SECRETARY OF THE INTERIOR, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[February 27, 2018]
CHIEF JUSTICE ROBERTS, with whom JUSTICE KENNEDY
and JUSTICE GORSUCH join, dissenting.
Two Terms ago, this Court unanimously agreed that
Congress could not pass a law directing that, in the hypo-
thetical pending case of Smith v. Jones, “Smith wins.”
Bank Markazi v. Peterson, 578 U. S. ___, ___, n. 17 (2016)
(slip op., at 13, n. 17). Today, the plurality refuses to
enforce even that limited principle in the face of a very
real statute that dictates the disposition of a single pend-
ing case. Contrary to the plurality, I would not cede un-
qualified authority to the Legislature to decide the out-
come of such a case. Article III of the Constitution vests
that responsibility in the Judiciary alone.
I
A
Article III, §1 of the Constitution confers the “judicial
Power of the United States” on “one supreme Court” and
such “inferior Courts” as Congress might establish. That
provision, our cases have recognized, is an “inseparable
element of the constitutional system of checks and bal-
ances,” which sets aside for the Judiciary the authority to
decide cases and controversies according to law. Northern
Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S.
50, 58 (1982) (plurality opinion). “Under the basic concept
2 PATCHAK v. ZINKE
ROBERTS, C. J., dissenting
of separation of powers,” the judicial power to interpret
and apply the law “can no more be shared with another
branch than the Chief Executive, for example, can share
with the Judiciary the veto power, or the Congress share
with the Judiciary the power to override a Presidential
veto.” Stern v. Marshall, 564 U.S. 462, 483 (2011) (inter-
nal quotation marks omitted).
The Framers’ decision to establish a judiciary “truly
distinct from both the legislature and the executive,” The
Federalist No. 78, p. 466 (C. Rossiter ed. 1961) (A. Hamil-
ton), was born of their experience with legislatures “ex-
tending the sphere of [their] activity and drawing all
power into [their] impetuous vortex,” id., No. 48, at 309 (J.
Madison). Throughout the 17th and 18th centuries, colo-
nial legislatures routinely functioned as courts of equity,
“grant[ing] exemptions from standing law, prescrib[ing]
the law to be applied to particular controversies, and even
decid[ing] the merits of cases.” Manning, Response, Deriv-
ing Rules of Statutory Interpretation from the Constitu-
tion, 101 Colum. L. Rev. 1648, 1662 (2001). In Virginia,
for instance, Thomas Jefferson lamented that the assem-
bly had, “in many instances, decided rights which should
have been left to judiciary controversy.” Notes on the
State of Virginia 120 (W. Peden ed. 1982). And in Penn-
sylvania, the Council of Censors—a body charged with
ensuring compliance with the state constitution—
denounced the state assembly’s practice of “extending
their deliberations to the cases of individuals” in order to
ease the “hardships which will always arise from the
operation of general laws.” Report of the Committee of the
Pennsylvania Council of Censors 38, 43 (F. Bailey ed.
1784). “[T]here is reason to think,” the Censors reported,
“that favour and partiality have, from the nature of public
bodies of men, predominated in the distribution of this
relief.” Id., at 38.
Given the “disarray” produced by this “system of legisla-
Cite as: 583 U. S. ____ (2018) 3
ROBERTS, C. J., dissenting
tive equity,” the Framers resolved to take the innovative
step of creating an independent judiciary. Plaut v. Spend-
thrift Farm, Inc., 514 U.S. 211, 221 (1995). They recog-
nized that such a structural limitation on the power of the
legislative and executive branches was necessary to secure
individual freedom. As James Madison put it, “[w]ere the
power of judging joined with the legislative, the life and
liberty of the subject would be exposed to arbitrary con-
trol.” The Federalist No. 47, at 303 (citing 1 Montesquieu,
The Spirit of the Laws).
The Constitution’s division of power thus reflects the
“concern that a legislature should not be able unilaterally
to impose a substantial deprivation on one person.” INS v.
Chadha, 462 U.S. 919, 962 (1983) (Powell, J., concurring
in judgment). The Framers protected against that threat,
both in “specific provisions, such as the Bill of Attainder
Clause,” and in the “general allocation” of the judicial
power to the Judiciary alone. Ibid. As Chief Justice Mar-
shall wrote, the Constitution created a straightforward
distribution of authority: The Legislature wields the power
“to prescribe general rules for the government of society,”
but “the application of those rules to individuals in soci-
ety” is the “duty” of the Judiciary. Fletcher v. Peck, 6
Cranch 87, 136 (1810). Article III, in other words, sets out
not only what the Judiciary can do, but also what Con-
gress cannot.
Congress violates this arrangement when it arrogates
the judicial power to itself and decides a particular case.
We first enforced that rule in United States v. Klein, 13
Wall. 128 (1872), when the Radical Republican Congress
passed a law targeting suits by pardoned Confederates.
Although this Court had held that a pardon was proof of
loyalty and entitled claimants to damages for property
seized by the Union, see United States v. Padelford, 9
Wall. 531, 543 (1870), Congress sought to block Confeder-
ate supporters from receiving such compensation. It
4 PATCHAK v. ZINKE
ROBERTS, C. J., dissenting
therefore enacted a statute barring rebels from using a
pardon as evidence of loyalty, instead requiring the courts
to dismiss for want of jurisdiction any suit based on a
pardon. This Court declared the law unconstitutional.
Congress, in addition to impairing the President’s pardon
power, had “prescribe[d] rules of decision to the Judicial
Department . . . in cases pending before it.” Klein, 13
Wall., at 146. The Court accordingly held that the statute
“passed the limit which separates the legislative from the
judicial power.” Id., at 147.
We have frequently reiterated this basic premise of the
separation of powers. In Pope v. United States, 323 U.S. 1
(1944), the Court recognized that “changing the rules of
decision for the determination of a pending case” would
impermissibly interfere with judicial independence, but
held that such concerns were absent when Congress con-
sented to a claims settlement pursuant to its broad power
“to provide for the payment of debts.” Id., at 9; see
Chadha, 462 U.S., at 966, n. 9 (Powell, J., concurring in
judgment) (“When Congress grants particular individuals
relief or benefits under its spending power, the danger of
oppressive action that the separation of powers was de-
signed to avoid is not implicated.”). As we also explained
in United States v. Sioux Nation, 448 U.S. 371, 398
(1980), because Congress has “no judicial powers” to ren-
der judgment “directly,” it likewise cannot do so indirectly,
by “direct[ing] . . . a court to find a judgment in a certain
way.” That sort of legislative intervention constitutes an
exercise of the judicial power, leaving “the court no adjudi-
catory function to perform.” Id., at 392. Most recently, we
reaffirmed the fundamental proposition that “Congress
could not enact a statute directing that, in ‘Smith v.
Jones,’ ‘Smith wins.’ ” Bank Markazi, 578 U. S., at ___,
n. 17 (slip op., at 13, n. 17).
Cite as: 583 U. S. ____ (2018) 5
ROBERTS, C. J., dissenting
B
As the plurality acknowledges, ante, at 14, the facts of
this case are stark. The Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians (Band) sought land on which
to build a casino. The Band identified a 147-acre tract of
land in rural southwestern Michigan (called the Bradley
Property), and in 2005 the Secretary of the Interior an-
nounced a final decision to take the property into trust on
behalf of the Band. See 70 Fed. Reg. 25596 (2005).
Fearing an “irreversibl[e] change [to] the rural character
of the area,” David Patchak, a neighboring landowner,
filed a lawsuit challenging the transfer. Patchak v. Jewell,
828 F.3d 995, 1000 (CADC 2016). The suit alleged that
the Secretary lacked statutory authority to take the Brad-
ley Property into trust. The Secretary asserted several
grounds for dismissing the case, but this Court ultimately
granted review and determined that “Patchak’s suit may
proceed.” Match-E-Be-Nash-She-Wish Band of Potta-
watomi Indians v. Patchak, 567 U.S. 209, 212 (2012)
(Patchak I ).
Following remand, while summary judgment briefing
was underway in the District Court, the Band persuaded
Congress to enact a standalone statute, the Gun Lake
Trust Land Reaffirmation Act (Gun Lake Act), to termi-
nate the suit. Pub. L. 113–179, 128 Stat. 1913. Section
2(a) of the Act provides that the land “described in . . . 70
Fed. Reg. 25596”—the Bradley Property—“is reaffirmed as
trust land, and the actions of the Secretary of the Interior
in taking that land into trust are ratified and confirmed.”
Then Congress went further. In §2(b) it provided:
“NO CLAIMS.—Notwithstanding any other provision of
law, an action (including an action pending in a Fed-
eral court as of the date of enactment of this Act) re-
lating to the land described in subsection (a) shall not
be filed or maintained in a Federal court and shall be
6 PATCHAK v. ZINKE
ROBERTS, C. J., dissenting
promptly dismissed.”
When Congress passed the Act in 2014, no other suits
relating to the Bradley Property were pending, and the
six-year statute of limitations on challenges to the Secre-
tary’s action under the Administrative Procedure Act had
expired. See 28 U.S. C. §2401(a). The Committees that
recommended the legislation affirmed that the statute
would make no “changes in existing [Indian] law.” H. R.
Rep. No. 113–590, p. 5 (2014); S. Rep. No. 113–194, p. 4
(2014).
Recognizing that the “clear intent” of Congress was “to
moot this litigation,” the District Court dismissed
Patchak’s case against the Secretary. Patchak v. Jewell,
109 F. Supp. 3d 152, 159 (DC 2015). The D. C. Circuit
affirmed, also based on the “plain” directive of §2(b). 828
F.3d, at 1001.
II
Congress has previously approached the boundary
between legislative and judicial power, but it has never
gone so far as to target a single party for adverse treat-
ment and direct the precise disposition of his pending
case. Section 2(b)—remarkably—does just that.
The plurality cites a smattering of “narrow statutes”
that this Court has previously upheld. Ante, at 14. Yet
none is as brazen as §2(b), either in terms of dictating a
particular outcome or in singling out a particular party.
Indeed, the bulk of those cases involved statutes that
prospectively governed an open-ended class of disputes
and left the courts to apply any new legal standard in the
first instance. In Pennsylvania v. Wheeling & Belmont
Bridge Co., 18 How. 421 (1856), for example, we addressed
an enactment that permanently altered the legal status of
a public bridge going forward by reclassifying it as a postal
road. That provision, we later said, did not prescribe an
“arbitrary rule of decision” but instead “left [the court] to
Cite as: 583 U. S. ____ (2018) 7
ROBERTS, C. J., dissenting
apply its ordinary rules” to determine whether the redes-
ignation of the structure meant that it was an obstruction
of interstate commerce. Klein, 13 Wall., at 146–147. And
in Robertson v. Seattle Audubon Soc., 503 U.S. 429 (1992),
the statute at issue made reference to specific cases only
as a shorthand for identifying preexisting environmental
law requirements. Id., at 440. The statute applied gener-
ally—“replac[ing] the legal standards” for timber harvest-
ing across 13 national forests—and explicitly reserved for
judicial determination whether pending and future timber
sales complied with the new standards. Id., at 437.
Even Bank Markazi, which disclaimed a number of
limits on Congress’s authority to intervene in ongoing
litigation, did not suggest that Congress could dictate the
result in a pending case. There, Congress inserted itself
into a long-running dispute over whether terrorist victims
could satisfy their judgments against Iran’s central bank,
enacting a statute that eliminated certain legal impedi-
ments to obtaining the bank’s assets. We upheld the law
because it “establish[ed] new substantive standards” and
entrusted “application of those standards” to the court.
578 U. S., at ___ (slip op., at 18).
But the Court in Bank Markazi did not have before it
anything like §2(b), which prevents the court from apply-
ing any new legal standards and explicitly dictates the
dismissal of a pending proceeding. The Court instead
stressed that the judicial findings contemplated by the
statute in Bank Markazi left “plenty” for the court “to
adjudicate” before ruling that the bank was liable. Id., at
___, n. 20 (slip op., at 17, n. 20). The law, for instance, did
not define the terms “beneficial interest” and “equitable
title.” The District Court needed to resolve the scope of
those phrases. Nor did it decide whether the assets were
owned by the bank. That issue was also assigned to the
court. And lastly, the statute did not settle whether the
assets were held in New York or Luxembourg. The court
8 PATCHAK v. ZINKE
ROBERTS, C. J., dissenting
had to sort that out too. See ibid.1 Section 2(b) goes much
further than the statute in Bank Markazi by disposing of
the case outright, wresting any adjudicative responsibility
from the courts. For all of the plurality’s discussion of the
Federalist Papers and “exclusive” judicial power, ante, at
5, it is idle to suggest that §2(b) preserves any role for the
court beyond that of stenographer.
In addition, the Court in Bank Markazi repeatedly
emphasized that the law was not a “one-case-only regime.”
578 U. S., at ___ (slip op., at 1). The law instead governed
a category of postjudgment execution claims filed by over a
thousand plaintiffs who, in 16 different actions, had ob-
tained judgments against Iran in excess of $1.75 billion—
facts suggesting more generality than is true of many Acts
of Congress.
By contrast, §2(b) targets a single pending case. Al-
though the formal language of the provision—reaching any
action “relating to” the Bradley Property—could theoreti-
cally suggest a broader application, its practical operation
unequivocally confirms that it concerns solely Patchak’s
suit. See Commodity Futures Trading Comm’n v. Schor,
478 U.S. 833, 851 (1986) (explaining that the Court “re-
view[s] Article III challenges . . . with an eye to the practi-
cal effect that the congressional action will have on the
constitutionally assigned role of the federal judiciary”). In
an effort to identify a set of disputes to which §2(b) might
apply, the plurality asserts that the provision extends to
any action relating to the trust status of the property.
Ante, at 15. Yet as the D. C. Circuit recognized, no other
cases were pending when the provision was enacted; §2(b)
affected “only . . . Patchak’s lawsuit.” 828 F.3d, at 1003.
——————
1 Not
every Member of the Court thought these responsibilities ade-
quate under Article III, see Bank Markazi, 578 U. S., at ___–___
(ROBERTS, C. J., dissenting) (slip op., at 12–13), but all save two did,
and that’s a comfortable enough margin to establish the point.
Cite as: 583 U. S. ____ (2018) 9
ROBERTS, C. J., dissenting
And as the Band concedes, no additional suits challenging
the transfer could have been filed under the APA—or any
other statute of which we are aware—due to the expira-
tion of the statute of limitations. Brief for Respondent
Band 6. The plurality thus is simply incorrect when it
asserts that the Act applies to a broad “class of cases.”
Ante, at 8, 15. What are those cases?
This is not a question of probing Congress’s “unex-
pressed motives.” Ante, at 15. The text and operation of
the provision instead make clear that the range of poten-
tial applications is a class of one. Congress, in crafting a
law tailored to Patchak’s suit, has pronounced the equiva-
lent of “Smith wins.”
III
The plurality refuses to “jealously guard[ ]” against such
a basic intrusion on judicial independence. Northern
Pipeline, 458 U.S., at 60. It instead focuses on general
tenets of jurisdiction stripping. In its view, §2(b) falls
comfortably within Congress’s power to regulate the juris-
diction of the federal courts, and accordingly does not
constitute an exercise of judicial power.
But nothing in §2(b) specifies that the statute is juris-
dictional. That has special significance: To rein in “profli-
gate use of the term ‘jurisdiction,’ ” this Court in recent
cases has adopted a “bright line” rule treating statutory
limitations as nonjurisdictional unless Congress “clearly
states” otherwise. Sebelius v. Auburn Regional Medical
Center, 568 U.S. 145, 153 (2013); Arbaugh v. Y & H Corp.,
546 U.S. 500, 515–516 (2006). The Gun Lake Act does not
clearly state that it imposes a jurisdictional restriction—
the term is not mentioned anywhere in the title, headings,
or text of the Act. Indeed, we have previously found that
nearly identical statutory language “says nothing about
whether a federal court has subject-matter jurisdiction.”
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 164 (2010).
10 PATCHAK v. ZINKE
ROBERTS, C. J., dissenting
Compare 17 U.S. C. §411(a), the statute in Reed Elsevier
(“no civil action . . . shall be instituted”), with §2(b) (“an
action . . . shall not be filed or maintained”).2 And since
the Gun Lake Act was passed well after our series of cases
setting forth a clear statement rule, we may “presume”
that Congress was conscious of that obligation when it
drafted §2(b). United States v. Wells, 519 U.S. 482, 495
(1997).
After stretching to read §2(b) as jurisdictional, the plu-
rality dedicates considerable effort to defending Congress’s
broad authority over the jurisdiction of the federal courts.
Ante, at 7–10. That background principle is undoubtedly
correct—and undoubtedly irrelevant for the purposes of
evaluating §2(b). For while the greater power to create
inferior federal courts generally includes the power to
strip those courts of jurisdiction, at a certain point that
lesser exercise of authority invades the judicial function.
“Congress has the power (within limits) to tell the courts
what classes of cases they may decide, but not to prescribe
or superintend how they decide those cases.” Arlington v.
FCC, 569 U.S. 290, 297 (2013) (majority opinion of Scalia,
J.) (emphasis added; citations omitted). In other words,
Congress cannot, under the guise of altering federal juris-
diction, dictate the result of a pending proceeding.
Klein, after all, drew precisely the same distinction
when it considered the provision stripping jurisdiction
——————
2 The plurality suggests an analogy to Gonzalez v. Thaler, 565 U.S.
134 (2012), which addressed in passing the familiar hurdle in habeas
proceedings that “an appeal may not be taken” unless a judge issues a
“certificate of appealability.” Id., at 142 (quoting 28 U.S. C.
§2253(c)(1)). But that gatekeeping requirement—which dates back to
1908—has long been understood as a direct limitation “on the power of
federal courts to grant writs of habeas corpus,” Miller-El v. Cockrell,
537 U.S. 322, 336–338 (2003), and appears alongside other provisions
that speak in “clear jurisdictional language,” Gonzalez, 565 U.S., at
142 (internal quotation marks omitted). Nothing similar is at issue
here.
Cite as: 583 U. S. ____ (2018) 11
ROBERTS, C. J., dissenting
over any suit based on a pardon. Chief Justice Chase’s
opinion for the Court explained that if the statute had
“simply” removed jurisdiction over “a particular class of
cases,” it would be regarded as “an exercise of the
acknowledged power of Congress to make exceptions and
prescribe regulations to the appellate power.” 13 Wall., at
145, 146. But because the withdrawal of jurisdiction was
a “means to an end,” founded “solely on the application of
a rule of decision,” the Court held that the law violated the
separation of powers. Ibid.; see R. Fallon, J. Manning, D.
Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal
Courts and the Federal System 324 (7th ed. 2015) (recog-
nizing that “not every congressional attempt to influence
the outcome of cases, even if phrased in jurisdictional
language, can be justified as a valid exercise of a power
over jurisdiction”).
Contrary to the plurality, I would hold that Congress
exercises the judicial power when it manipulates jurisdic-
tional rules to decide the outcome of a particular pending
case. Because the Legislature has no authority to direct
entry of judgment for a party, it cannot achieve the same
result by stripping jurisdiction over a particular proceed-
ing. Does the plurality really believe that there is a mate-
rial difference between a law stating “The court lacks
jurisdiction over Jones’s pending suit against Smith” and
one stating “In the case of Smith v. Jones, Smith wins”?
In both instances, Congress has resolved the specific case
in Smith’s favor.
Over and over, the plurality intones that §2(b) does not
impinge on the judicial power because the provision
“changes the law.” See ante, at 6–7, 10–14. But all that
§2(b) does is deprive the court of jurisdiction in a single
proceeding. If that is sufficient to change the law, the
plurality’s rule “provides no limiting principle” on Con-
gress’s ability to assume the role of judge and decide the
outcome of pending cases. Northern Pipeline, 458 U.S., at
12 PATCHAK v. ZINKE
ROBERTS, C. J., dissenting
73.
In my view, the concept of “changing the law” must
imply some measure of generality or preservation of an
adjudicative role for the courts. The weight of our juris-
diction stripping precedent bears this out. Almost all of
the examples the plurality cites, see ante, at 10, 13, con-
templated the wholesale repeal of a generally applicable
jurisdictional provision. See Hallowell v. Commons, 239
U.S. 506, 508 (1916) (“The [provision] applies with the
same force to all cases and was embodied in a statute that
no doubt was intended to apply to all.”); Cary v. Curtis, 3
How. 236, 245 (1845); see also Landgraf v. USI Film
Products, 511 U.S. 244, 274 (1994); Kline v. Burke Constr.
Co., 260 U.S. 226, 234 (1922). The Court, to date, has
never sustained a law that withdraws jurisdiction over a
particular lawsuit.
The closest analogue is of course Ex parte McCardle, 7
Wall. 506 (1869), which the plurality nonchalantly cites as
one of its leading authorities. McCardle arose amid a
pitched national debate over Reconstruction of the former
Confederacy. William McCardle, an unreconstructed
newspaper editor, was being held in military custody for
inciting insurrection. After unsuccessfully applying for
federal habeas relief in the circuit court, McCardle ap-
pealed to the Supreme Court, raising a broad challenge to
the constitutionality of Reconstruction. The Court heard
argument on his habeas appeal over the course of four
days in March 1868. Before the Court could render its
decision, however, the Radical Republican Congress—
in an acknowledged effort to sweep the case from the
docket—enacted a statute withdrawing the Supreme Court’s
appellate jurisdiction in habeas cases. Van Alstyne, A
Critical Guide to Ex parte McCardle, 15 Ariz. L. Rev. 229,
239–241 (1973).
The Court unanimously dismissed McCardle’s appeal.
In a brief opinion, Chief Justice Chase sidestepped any
Cite as: 583 U. S. ____ (2018) 13
ROBERTS, C. J., dissenting
consideration of Congress’s attempt to preclude a decision
in the case. Faced with a “plain[ ] instance of positive
exception,” the Court held that it lacked power to review
McCardle’s claims. 7 Wall., at 514.
The Court’s decision in McCardle has been alternatively
described as “caving to the political dominance” of the
Radical Republicans or “acceding to Congress’s effort to
silence the Court.” Meltzer, The Story of Ex parte
McCardle, in Federal Courts Stories 73 (V. Jackson & J.
Resnick eds. 2010). Read for all it is worth, the decision is
also inconsistent with the approach the Court took just
three years later in Klein, where Chief Justice Chase (a
dominant character in this drama) stressed that “[i]t is of
vital importance” that the legislative and judicial powers
“be kept distinct.” 13 Wall., at 147.
The facts of McCardle, however, can support a more
limited understanding of Congress’s power to divest the
courts of jurisdiction. For starters, the repealer provision
covered more than a single pending dispute; it applied to a
class of cases, barring anyone from invoking the Supreme
Court’s appellate jurisdiction in habeas cases for the next
two decades. In addition, the Court’s decision did not
foreclose all avenues for judicial review of McCardle’s
complaint. As Chase made clear in the penultimate para-
graph of the opinion—and confirmed later that year in his
opinion for the Court in Ex parte Yerger, 8 Wall. 85
(1869)—the statute did not deny “the whole appellate
power of the Court.” 7 Wall., at 515. McCardle, by taking
a different procedural route and filing an original habeas
action, could have had his case heard on the merits.3
——————
3 The plurality surmises that McCardle reserved an alternative ave-
nue for relief in response to a perceived problem under the Suspension
Clause. Ante, at 9, n. 4. But regardless of the basis for that reserva-
tion, our point is simply that, in sustaining a jurisdictional repeal that
leaves a claimant without any prospect for relief, the plurality goes
beyond what the Court in McCardle upheld.
14 PATCHAK v. ZINKE
ROBERTS, C. J., dissenting
Section 2(b), on the other hand, has neither saving
grace. It ends Patchak’s suit for good. His federal case is
dismissed, and he has no alternative means of review
anywhere else. See 25 U.S. C. §1322(a) (providing that
state courts, absent the consent of the tribe, may not
exercise civil jurisdiction over trust land). Section 2(b)
thus reaches further than the typical jurisdictional repeal,
which “takes away no substantive right but simply changes
the tribunal that is to hear the case,” Landgraf, 511
U.S., at 274. Because §2(b) singles out Patchak’s suit,
specifies how it must be resolved, and deprives him of any
judicial forum for his claim, the decision to uphold that
provision surpasses even McCardle as the highwater mark
of legislative encroachment on Article III.
Indeed, although the stakes of this particular dispute
may seem insignificant, the principle that the plurality
would enshrine is of historic consequence. In no uncertain
terms, the plurality disavows any limitations on Con-
gress’s power to determine judicial results, conferring on
the Legislature a colonial-era authority to pick winners
and losers in pending litigation as it pleases. The Court in
Bank Markazi said it was holding the line against this
sort of legislative usurpation. See 578 U. S., at ___–___,
and n. 17, ___ (slip op., at 12–13, and n. 17, 18). The
plurality would yield even that last ditch.
IV
While the plurality reaches to read the Gun Lake Act as
stripping jurisdiction, JUSTICE GINSBURG’s concurrence,
joined by JUSTICE SOTOMAYOR, strains further to construe
§2(b) as restoring the Government’s sovereign immunity
from suit. To reinstate sovereign immunity after it has
been waived, Congress must express “an unambiguous
intention to withdraw” a remedy. Ruckelshaus v. Monsanto
Co., 467 U.S. 986, 1019 (1984). Congress has not made
that showing here. Section 2(b)—which provides that “an
Cite as: 583 U. S. ____ (2018) 15
ROBERTS, C. J., dissenting
action . . . relating to the [Bradley Property] . . . shall be
promptly dismissed”—bears none of the unmistakable
hallmarks of a provision withdrawing the sovereign’s
consent to suit.
The concurrence first relies on a hunch, based on the
Court’s earlier determination that Patchak’s suit was not
barred by sovereign immunity. See Patchak I, 567 U.S.,
at 224. But hunches do not make for an unambiguous
expression of intent. Nor, of course, does one lone refer-
ence to “immunity” in the legislative history. United
States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992)
(“[T]he ‘unequivocal expression’ of elimination of sovereign
immunity that we insist upon . . . cannot be supplied by a
committee report.”).
Saving the text for last, the concurrence fails to identify
a single instance where the Court has treated a statute
that does not mention “immunity,” “consent to be sued,” or
even the “United States” as restoring sovereign immunity.
The only basis for its interpretation is the purported simi-
larity between the language of the Gun Lake Act and the
waiver of immunity in the Administrative Procedure Act.
In drawing this comparison, however, JUSTICE GINSBURG
leaves out the critical element of that waiver. See ante, at
2 (opinion concurring in judgment). In full, the APA pro-
vision states that a suit “shall not be dismissed . . . on the
ground that it is against the United States.” 5 U.S. C.
§702 (emphasis added). Section 2(b), as noted, contains no
such reference to the sovereign.
As for JUSTICE BREYER’s concurrence, “dot[ting] all the
i’s,” “simplif[ying] judicial decisionmaking,” and “elimi-
nat[ing] the cost of litigating a lawsuit” are nothing but
cavalier euphemisms for exercising the judicial power.
Ante, at 2. JUSTICE BREYER assumes that §2(a) is consti-
tutionally unobjectionable, and that §2(b) seeks the same
“real-world result.” Ibid. But if §2(a) is constitutional, it
is because the provision establishes new substantive
16 PATCHAK v. ZINKE
ROBERTS, C. J., dissenting
standards and leaves the court to apply those standards in
the first instance. That is the rule set forth plainly in
Bank Markazi. And if that is so, §2(b) does not simply
supplement §2(a)—it short-circuits the requisite adjudica-
tive process and decides the suit outright. The proper
allocation of authority under the Constitution is very
much part of the “real world.” Pursuant to that basic
equilibrium, Congress cannot “gild the lily” by relieving
the Judiciary of its job—applying the law to the case
before it.
* * *
The Framers saw this case coming. They knew that if
Congress exercised the judicial power, it would be impos-
sible “to guard the Constitution and the rights of individu-
als from . . . serious oppressions.” The Federalist No. 78,
at 469 (A. Hamilton). Patchak thought his rights were
violated, and went to court. He expected to have his case
decided by judges whose independence from political
pressure was ensured by the safeguards of Article III—life
tenure and salary protection. It was instead decided by
Congress, in favor of the litigant it preferred, under a law
adopted just for the occasion. But it is our responsibility
under the Constitution to decide cases and controversies
according to law. It is our responsibility to, as the judicial
oath provides, “administer justice without respect to per-
sons.” 28 U.S. C. §453. And it is our responsibility to
“firm[ly]” and “inflexibl[y]” resist any effort by the Legisla-
ture to seize the judicial power for itself. The Federalist
No. 78, at 470.
I respectfully dissent.