The Irrepressible Myth of Klein

45 Pages Posted: 3 Mar 2011

See all articles by Howard Wasserman

Howard Wasserman

Florida International University (FIU) - College of Law

Date Written: February 2, 2011


The Reconstruction-era case of United States v. Klein remains the object of a "cult" among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth - actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of federal courts. But close analysis also reveals that these principles are neither exceptional nor vigorous as judicial constraints on congressional power. It is telling that in 140 years, Klein has not been used to invalidate any actual legislation, other than the law at issue in Klein itself. At bottom, Klein becomes the lynchpin for constitutionalizing basic policy preferences against these laws. But this ignores a central distinction between bad policy and unconstitutional policy; we cannot confuse what the Constitution prohibits with bad statesmanship. Couching policy objections in Klein terms does not make the decision any less a constitutional myth.

Keywords: United States v. Klein, separation of powers, judicial independence, congressional control, federal courts

Suggested Citation

Wasserman, Howard, The Irrepressible Myth of Klein (February 2, 2011). University of Cincinnati Law Review, Vol. 79, No. 1, 2010; Florida International University Legal Studies Research Paper No. 11-08. Available at SSRN:

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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