The Irrepressible Myth of Klein

40 Pages Posted: 20 Aug 2009

See all articles by Howard Wasserman

Howard Wasserman

Florida International University (FIU) - College of Law

Date Written: August 19, 2009


This paper examines the Reconstruction-era case of United States v. Klein, which imposed some uncertain limitations on congressional control over judicial jurisdiction and judicial decisionmaking. Klein remains one of the mysteries of the constitutional-law canon, a subject of a sort of 'cult' among some lawyers and commentators, although no one seems to know how or why. Two connected myths surround Klein. First, the case is said to be meaninglessly indeterminate because, given the confusing and disjointed language of the opinion, its precise doctrinal contours are not clear; second, the case is believed (and hoped) to function as vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Both of these ideas are false. In fact, close analysis of Klein, its progeny, and past scholarship reveals three core, somewhat-related principles of separation of powers and limits on congressional control over the courts: 1) Congress cannot dictate case outcomes; 2) Congress cannot tell the courts how to understand, interpret, or apply the Constitution; and 3) Congress cannot enact unconstitutional rules.

But close analysis also reveals that Klein lacks doctrinal vigor and that the belief in Klein's power is purely a myth. Those three core principles are neither groundbreaking nor exceptional and all are common ideas, reflected in and associated with other precedents and constitutional doctrines; we do not need Klein to advance these separation-of-power ideals. Consider that no federal law has been judicially invalidated on Klein grounds since the law challenged in Klein itself.

Klein's principles fail to limit in any meaningful way Congress' power to enact two recent, controversial pieces of War-on-Terror legislation: the Military Commissions Act of 2006, which imposed limits on Habeas Corpus on federal judicial decisionmaking in cases brought by WOT detainees, and the FISA Amendments Act of 2008, which granted telecommunications companies retroactive immunity for their assistance to the Bush Administration in conducting warrantless surveillance of people in the United States. Although both laws limit and control the authority, operation, and decisionmaking of federal courts over highly contested legal and constitutional issues - the concerns at the case's heart - the case imposes no meaningful constitutional barriers to either enactment and both survive constitutional scrutiny. The continued belief that Klein imposes significant constitutional limits is a continued belief in a legal myth.

Keywords: separation of powers, jurisdiction, litigation, War on Terror

Suggested Citation

Wasserman, Howard, The Irrepressible Myth of Klein (August 19, 2009). Florida International University Legal Studies Research Paper No. 09-07, Available at SSRN: or

Howard Wasserman (Contact Author)

Florida International University (FIU) - College of Law ( email )

University Park, DB 2065
Miami, FL 33199
United States
305-348-7482 (Phone)

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