Bank Markazi v. Peterson

Oral argument transcript · No. 14-770 · October Term 2015 · argued January 13, 2016 · the respondent won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Jeffrey A. Lamken, Washington, D.C., for the petitioner
• Theodore B. Olson, Washington, D.C., for the respondent
• Edwin S. Kneedler, Deputy Solicitor General, amicus curiae supporting the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 14­770, Bank Markazi v. Peterson. Mr. Lamken. ORAL ARGUMENT OF JEFFREY A. LAMKEN ON BEHALF OF THE PETITIONER

Jeffrey A. Lamken: Thank you, Mr. Chief Justice, and may it please the Court: For nearly 200 years, Congress never enacted a statute that purported to limit the effect to one and only one specified case pending before Article III courts disclaiming any reach beyond that solitary monetary dispute.

Justice Ginsburg: Mr. Lamken, is it one case? I mean, this is a consolidation for purposes of reaching assets ­­ it's a consolidation of some 19 cases?

Jeffrey A. Lamken: No, Your Honor, it is not a consolidation of 19 cases. It began when the Peterson plaintiffs filed a turnover action. Other parties were interpleaded. Other parties intervened. But it has been one case with one caption, ruled upon by one judge with one decision. Alderson Court Reporting Official ­ Subject to Final Review

Justice Ginsburg: Is there ­­ are there any ­­

Justice Kennedy: Well, suppose there were three unrelated cases.

Jeffrey A. Lamken: Pardon?

Justice Kennedy: Suppose there were three unrelated cases. Would the statute pass?

Jeffrey A. Lamken: Yes. So if Congress had identified three unrelated cases and ­­ and said that for these unrelated cases ­­

Justice Kennedy: Yes, it specifies them by number and so forth.

Jeffrey A. Lamken: By number. We believe that the result would be the same. That Congress crosses the threshold from legislation to adjudication when attempts to pass a law which has no effect and no existence apart from specified cases pending before the Supreme ­­

Justice Kennedy: I ­­ I inadvertently interrupted Justice Ginsburg, but in the ­­ in the 19 cases here, you don't find that principle?

Jeffrey A. Lamken: No, Your Honor. There aren't 19 cases here. There's one case here. There was no ­­

Justice Ginsburg: One case for purposes of Alderson Court Reporting Official ­ Subject to Final Review 1 executing, but there are ­­ there are 19 judgments involving thousands.

Jeffrey A. Lamken: That ­­ that's correct. There are 19 underlying judgments, but only one execution.

Justice Ginsburg: Are there ­­ are there any in this category, that is, cases litigated to judgment for terrorist acts, that are not in this package of 19 cases?

Jeffrey A. Lamken: I don't know whether there are any others that ­­ where they were denied intervention here. But the point, I think the fundamental point is that no future case that's identically situated, no other case except this one case will be subject to this rule.

Justice Kagan: What if there were 19 cases, Mr. Lamken, and Congress specified them all?

Jeffrey A. Lamken: Yes. Yes. I think the answer would be the same. Would be the same. And that is that, when Congress dictates the outcome from a limited category of cases with one liable party ­­

Justice Kagan: Well, I guess what I'm asking ­­

Jeffrey A. Lamken: ­­ that some kind of prospectus ­­

Justice Kagan: I guess what I'm asking is Alderson Court Reporting Official ­ Subject to Final Review 1 what that means, "a limited category." Is the number irrelevant if Congress specifies them? I mean, Congress could specify a hundred. Congress could ­­

Jeffrey A. Lamken: I think ­­ I think it would be. When Congress is not willing to make the law applicable generally to categories of cases but singles out particular pending cases to alter the course of proceedings ­­

Justice Alito: Is it the ­­ is it the use of the case name in the ­­ or the number in the statute that is the offending characteristic? I imagine that a ­­ a ­­ a creative drafter could draft a statute that makes no reference to a particular case or to particular cases but could put so many limitations on the scope of the law that, in fact, it applies only to one case or to a small number of cases exactly the ones that Congress wants to target. Congress does that; is it different?

Jeffrey A. Lamken: Right. I ­­ I think, Your Honor, if Congress so limits and so cabins it that, in effect, it has limited the law to one and one case only, it's inexplicable, except as an effort, to limit it to one case and one case only. That would fall within our rule as well. And the principle underlying that is that Alderson Court Reporting Official ­ Subject to Final Review 1 Congress enacts laws; it doesn't adjudicate specific cases.

Justice Scalia: You know, we ­­ we had a case. I don't remember the case name. I think it dealt with Lampf, which ­­ which ­­ in which our Court had come to a surprise decision which shortened what everybody thought had been the statute of limitations for certain securities actions. Congress passed a law trying to reverse our decision. It said anybody who had filed the security action prior to the date of this decision would be allowed to refile and proceed to judgment. We went through a lot of trouble to say that Congress can't do that because it is reversing the outcome of a court judgment. It would have been so easy to decide that case by saying, my Lord, it's just referring to particular cases.

Jeffrey A. Lamken: Well, in fact, the statute at issue in Plaut that ­­ that reversed Lampf was a generally applicable case to all pending cases. Its problem is it went too far and addressed cases which had gone final. And this Court held its authority to adjudicate cases includes the power to conclusively decide them, so it went too far. But it was a generally applicable statute to all pending cases. This is the exact opposite. In fact, if Alderson Court Reporting Official ­ Subject to Final Review 1 this suit were dismissed on a technicality, and identically­situated plaintiffs filed a new one, or these plaintiffs filed a new one and it got a different caption, 8772 would not apply.

Justice Kennedy: What about the Robertson case? Is ­­ isn't that the case involving the timber?

Jeffrey A. Lamken: Yes. So Robertson is also a generally applicable statute. That statute said that for the five statutory provisions that were at issue in the cases, you could comply with those or you could comply with two new provisions, and that would be sufficient for the timber harvesting. But that rule applied not only to those cases, but to any additional cases ­­

Justice Kennedy: Well, as Justice Alito indicated, actually it named cases by ­­ didn't it reference the case by number?

Jeffrey A. Lamken: And the court said it referenced the case by number to identify the statutes that were the basis of the suit. And, in fact, Subsection (g) of that statute specifically contemplated additional suits challenging timber harvesting, and the new rule, which said Subsections (b)(3) and (b)(5) are good enough ­­ you don't have to comply with the other five statutes ­­ would apply to those new lawsuits as Alderson Court Reporting Official ­ Subject to Final Review 1 well.

Justice Scalia: Where do you get the notion that Congress can only act by generality? It acts all the time on individual matters. I mean, certainly, you know, grants certain privileges and certain monies on the basis of individual cases.

Jeffrey A. Lamken: Justice Scalia, our principle is not that Congress can't act on a certain bridge, a single parcel of land, a single set of presidential papers. It's that Congress cannot limit its legislation to one and only one case such that it dictates the outcome.

Justice Scalia: Why is that? So long as it is not overturning a judgment that the court has made in that case, as it did in Lampf or whatever the name ­­ was it Plaut? I don't think it was Plaut.

Jeffrey A. Lamken: Plaut wrote it.

Justice Scalia: I ­­ I wrote it. I just don't remember. (Laughter.) Do you know how many cases I've written? (Laughter.) So long as it doesn't overturn the judgment of the court, you have to be relying on the fact that it cannot act individually. Is it magic that it ­­ that Alderson Court Reporting Official ­ Subject to Final Review 1 the individualized law that it enacts happens to affect a particular case? Why is that magic?

Jeffrey A. Lamken: I think the principle is not whether it happens to affect a particular case. Congress can regularly ­­ well, often the problems will come to Congress's attention because of cases, and it may enact a law even thinking about that case. But what Congress can't do is limit its law so that it applies to that case and that case only.

Justice Kennedy: Because it violates what ­­ what principle? At ­­ at ­­ at the end of the day, I suppose maybe bill of attainder if there's a real intent to punish. Maybe equal protection might work. But I take it you're relying on separation of powers?

Jeffrey A. Lamken: Yes. And Article III, because it's the rule of the courts to decide individual cases.

Justice Breyer: What do we do about all of the ­­ what used to be when I worked in the Senate Judiciary Committee? Every year we would get dozens, maybe hundreds, past dozens of private bills. There were bills for one person, and moreover, at least some of them, to my recollection, involved that one person saying I tried to sue. Maybe the case is still there, but I was met with a statute of limitations defense, for Alderson Court Reporting Official ­ Subject to Final Review 1 example. I'd like the money. And we'd vote yes, give him the money, he deserves it, if he does.

Jeffrey A. Lamken: And I think the history of private bills actually proves our point, because the private bills, the vast majority, as you point out, don't affect a specified case at all. They just simply say you're entitled to your ­­

Justice Breyer: Well, considering the ones that do ­­

Jeffrey A. Lamken: Even the ­­ even the ­­

Justice Breyer: ­­ very often the person sued. He was met with some kind of defense, and he thought, and Congress might have thought maybe he should have the money. This is a technical defense.

Jeffrey A. Lamken: Exactly. And in the context of suits against the government ­­

Justice Breyer: Yes ­­

Jeffrey A. Lamken: ­­ traditional context, the government has ­­ the Federal government has expansive authority to waive its defenses, to relinquish its claims, to expand or contract ­­

Justice Breyer: I understand you ­­

Jeffrey A. Lamken: ­­ or in that context, and in that context alone, the government ­­ the Federal government has extraordinary power to determine ­­ Alderson Court Reporting Official ­ Subject to Final Review

Justice Breyer: Well, what ­­ now ­­ now, suppose it's a private person on the other side. I can easily imagine circumstances where to take the money from private B and give it to private A might ­­ for example, a property without due process. It might violate some other provision. But if it doesn't violate some other provision, what in the separation of powers, unsaid principles, distinguishes between taking $10 from the government and giving it to the private person, or taking $10 from Joe Smith and giving it to the private person, assuming there's nothing unfair about that?

Jeffrey A. Lamken: Setting aside other constitutional provisions, Justice Breyer, the difference is this: Congress has full power to waive the United States defenses, to relinquish its own claims, to contract or expand its immunity. But when it comes to a suit between two private parties, the government can't waive one of those party's defenses. And courts ­­

Justice Breyer: Because?

Jeffrey A. Lamken: Pardon?

Justice Breyer: Because I think ­­

Jeffrey A. Lamken: Those aren't the government rights. And from ­­

Justice Breyer: Oh, oh. The defense ­­ the Alderson Court Reporting Official ­ Subject to Final Review 1 defense happened to be ­­ that worked ­­ an obscure provision in a court of claims act, that the government through Congress had once put in, and they decided it would be unfair to apply it now to this person, and so they repeal it in respect to that person. And there's never going to be another like him. Okay? Now, don't play. What I don't want you to do is play on the potential unfairness, because there are other parts of the constitution there. Assume it's fair to do that. What stops it.

Jeffrey A. Lamken: I think the answer is when it comes to deciding individual cases, particularly individual cases between private parties, that is the domain of the courts, and not Congress.

Justice Kagan: Could Congress do it ­­

Jeffrey A. Lamken: But from the ­­

Justice Kagan: Could Congress do it the day before a lawsuit is filed? In other words, Congress knows that a lawsuit is going to be filed on a particular subject and just creates the rule for that lawsuit, but the lawsuit hadn't actually been commenced yet?

Jeffrey A. Lamken: So long as this law is of general applicability ­­ it's going to apply to laws for the future, then it is not going to be ­­ Alderson Court Reporting Official ­ Subject to Final Review

Justice Kagan: Suppose it weren't. Supposed it was like Congress amends the law so that assets held in Clearstream Citibank account is subject to execution by Deborah Peterson, before Deborah Peterson brought suit.

Jeffrey A. Lamken: Right. And I think that's potentially a harder case for us. But when Congress legislates and the legislation can have no effect but on a lawsuit, I think that that would be covered by the judicial ­­

Justice Scalia: There's no lawsuit. There's no lawsuit yet.

Jeffrey A. Lamken: Yes. From the time of the framing, State courts with comparable constitutions repeatedly concluded that it violates separation of powers for their legislatures to enact a law which had an effect on one case and one case only. And that included, for example, lifting the statute of limitations for one case and one case only, because they had said ­­

Justice Scalia: By "one case," you mean not ­­ not one filed case?

Jeffrey A. Lamken: Yes.

Justice Scalia: For ­­ for one ­­ one ­­

Jeffrey A. Lamken: Yes. Alderson Court Reporting Official ­ Subject to Final Review

Justice Scalia: ­­ person?

Jeffrey A. Lamken: For one expected controversy and person, correct. And that is cases like Holden v. James and Jones v. Perry. And the point of the matter is ­­ and the holding for those cases is Congress, or in that case the State legislature ­­ crosses the line from legislation when, instead of enacting a law that has law apart from a single lawsuit, dictates the outcome of that lawsuit.

Justice Scalia: Well, there's no lawsuit yet. If you limited it to lawsuit, I'd understand what you're saying. But you're appealing to a much more general proposition, which is that Congress cannot act individually. It must enact general laws. And I just don't agree with that.

Jeffrey A. Lamken: Well, Justice Scalia, to be clear, our principle is not that it can act ­­ must act general laws in the sense that you can't law ­­ enact a law for one bridge, or one parcel of land, or one set of assets. It is that it cannot enact something that acts on one case and one case only, purports to have no effect, no ­­

Justice Scalia: I don't ­­ no. I'm sorry.

Jeffrey A. Lamken: Okay. But even if there's ­­ I mean, even if one were to disagree with me and think Alderson Court Reporting Official ­ Subject to Final Review 1 that Holden v. James in 1812, the Massachusetts Supreme Court got it wrong. Even if one were to disagree, in this case, we have a pending case. And then I'll just ­­

Chief Justice Roberts: Sorry, Mr. Lamken. I don't understand the fixation on how many cases we're talking about. I thought ­­ I mean, I understand the argument. But at least I think perhaps the more significant concern is what Congress is doing in that one case, which is you have a body of law that tells you when you can attach funds and when you can't, and instead of letting the court decide, that Congress comes along and says those funds can be attached. They could do that in two cases. They could do it in ten. They could do it in every case involving Iran. That doesn't seem terribly significant to me. What seems significant is what they are doing in that case.

Jeffrey A. Lamken: I think that certainly exacerbates the problem. When Congress does not merely say new law for this particular case, but says new law, plaintiffs win. That is certainly, certainly, across the line. And that is effectively what Congress did here. It enacted a law that said that plaintiffs were able to attach these assets if two conditions are met. But those conditions were clearly met before the law was Alderson Court Reporting Official ­ Subject to Final Review 1 enacted. There was only one possible outcome.

Justice Alito: Based on what you said this morning, I don't really understand the ­­ excuse me ­­ the limiting principle of your argument. You've said that the number of cases is not determinative, there could be a great many cases. And you've said that the naming of the ­­ the cases isn't significant, and it might not even be significant whether the case has been filed yet. So if you put all that together, what is the principle that you're ­­

Jeffrey A. Lamken: So I think for this case, the Court need only rule ­­ because it was never been ­­ it wasn't argued below and it wasn't argued in the brief in opposition if it was anything but one case. The Court could rule simply that when Congress singles out one case and one case only, that crosses the line. Apart from that ­­

Justice Kagan: But that seems silly ­­

Jeffrey A. Lamken: Apart from that ­­

Justice Kagan: ­­ Mr. Lamken, and that's why you've been saying that the number doesn't matter, and it doesn't matter whether it's the day before or the day after suit, and it doesn't matter if Congress has specified the docket number because any of those limitations, you would say, well, Congress could do, you Alderson Court Reporting Official ­ Subject to Final Review 1 know, pretty much the exact same thing except it would be in two cases, or except it would be without the docket number. And your answers suggest how, you know, a little bit nonsensical those distinctions would be.

Jeffrey A. Lamken: Let me explain why I wouldn't be concerned and then give you the principle that would govern the remaining cases. I would not be concerned about the limiting principle here because Congress, for 200 years, didn't get near this line because States, for almost 200 years, have had the exact same principles. And yet, there's no history, no debate, no series of cases determining did ­­ did their legislatures cross the line. The rule that I would give to address that is, simply put, if it's not listing particular cases, then Congress isn't going to cross the line so long as it doesn't dictate the outcome for a set of cases where there's only one liable party and it's unwilling ­­ and it's willing to make it a perspective in effect. But if Congress dictates the outcome, and there's only one liable defendant, and Congress is unwilling to make that perspective, that's dictating outcomes of cases. It is not legislation as we understand it. The framing generation certainly understood Alderson Court Reporting Official ­ Subject to Final Review 1 that that's something that purported to act on one case and one case only, or a handful of specified cases crossed the line from legislation to judicial decision making and violated our ­­ and violated the separation of powers. This Court likewise should understand that when Congress purports to act on one case, and if that case is dismissed and they're identical plaintiffs, file the identical suit, and it gets a different case number, yet the law doesn't apply, that law has no existence apart from dictating an outcome in a case ­­

Justice Kagan: Why doesn't it make a difference that this is in the area of foreign affairs? I had thought that our cases were pretty clear that the political branches ­­ especially the executive, so I concede that there's a difference there ­­ but that the political branches have a great deal of power in this area, even when it comes to very particular controversies.

Jeffrey A. Lamken: Right. And I think the government's examples prove exactly why Congress crossed the line here. Now, I'm going to start with sovereign immunity, foreign sovereign immunity, and the history of the executive determining sovereign immunity and the courts universally respecting it. And that's because Alderson Court Reporting Official ­ Subject to Final Review 1 sovereign immunity was a matter of comity, grace, and international politics. And the courts would respect the executives' determinations because they did not want to embarrass the executive or create an international incident by assuming jurisdiction where the executives told them not to. But State law and the UCC are not matters of grace, comity, or international politics. They are matters of law for the courts to decide.

Justice Kennedy: Well, perhaps ­­ perhaps they are when the assets are held by a country as to which we have very delicate relations with matters particularly involving dangerous acts allegedly perpetrated by that country.

Jeffrey A. Lamken: Justice Kennedy, I don't think the executive branch would submit to the courts a suggestion of State law because foreign affairs principles were at issue, and expect the States ­­

Justice Kennedy: Any suggestion ­­

Jeffrey A. Lamken: A suggestion of State law as opposed to a suggestion of immunity, because the State law is something that has existence apart from what the executive believes the right ­­

Justice Breyer: The State law is what would apply, perhaps, in the absence of a congressional Alderson Court Reporting Official ­ Subject to Final Review 1 statute. So the President goes to Congress and says, what I would like is you to agree with me about this. We've frozen $14 billion worth of assets of a country with which we are not friendly. There are some people who would like some of that money. We would like to take the assets which are currently being held in the 14th floor of the Howard Building in Chicago and use that. Why? We want to use that because we've worked out that that's the best way to pay people we think should be deserving money, and we don't care about the foreign country in respect to those. But our foreign relations are such that we don't want to get the others involved. Now what's wrong with that?

Jeffrey A. Lamken: Justice Breyer, if I understand the hypothetical, the executive's authority to implement the law ­­

Justice Breyer: No. I'll ­­ the hypothetical is meant to say just what Justice Kennedy brought up, which is the President, particularly when he acts together with Congress, is given the foreign affairs power to a very great extent of the United States of America. And that foreign affairs power could often involve, for reasons of foreign policy, unfreezing a refrigerator and not unfreezing the stove. So I don't ­­ I don't know foreign affairs, Alderson Court Reporting Official ­ Subject to Final Review 1 but I do know that the President, together with Congress, certainly must have very broad power to decide what assets shall or shall not be kept frozen and not kept frozen.

Jeffrey A. Lamken: So if the President were given the power to confiscate and distribute these assets, which frankly he has not, if he were given that power, that would exacerbate the separation of powers problem, because the executive branch and the political branches should take accountability for seizing the assets, confiscating them, distributing them. But they cannot, cannot attempt to give it an air of judicial legitimacy by commandeering one case and one case only, like ­­

Justice Kagan: Suppose there's ­­ suppose Iran were holding a great many American hostages, and Iran said, we'll release these hostages if you stop execution in a suit like this. And suppose Congress thought that that was a good deal and ­­ and said exactly that.

Jeffrey A. Lamken: Right. And that is the other authority that the Federal government invokes, which is this Court has said is very circumscribed, which is the claims settlement authority, which is the government can settle the claims of its own nationals if there is an international agreement or a court which it is Alderson Court Reporting Official ­ Subject to Final Review 1 attempting to implement. But you can't extrapolate from that to the ability to settle the claims, eliminate the claims and defenses of a foreign national when there is no settlement agreement or anything of that sort. This is unprecedented in foreign relations otherwise for a statute to say in this case and this case only, here's the result.

Justice Kagan: I'm not quite sure I understood that answer, and ­­ and you're ­­ you're suggesting that if Congress has a good reason to extinguish these claims, then Congress can do it, but if not, not.

Jeffrey A. Lamken: No. I think the answer is that the ­­ the example given, I believe, was the President wanting to do this. But Congress did not reflect in the statute ­­

Justice Kagan: No. I said Congress passes a statute that basically ­­

Jeffrey A. Lamken: Yeah.

Justice Kagan: ­­ affects this deal.

Jeffrey A. Lamken: Yeah. And if Congress acts on these assets, it has authority to do that. The one thing it can't do is say, this case, this case only, no other case, because that's just not law. That's an adjudication. Alderson Court Reporting Official ­ Subject to Final Review

Justice Kennedy: Well, your ­­ your answers seem to be that if the President does something, that he has more power, more authority than when the President acting with Congress does something. I would think it would be just the opposite.

Jeffrey A. Lamken: Well, Your Honor, I think the ­­ the ­­ if Congress delegates the power to the President, that's one thing. If Congress purports to, for example, in sovereign immunity, in 200 years there's no incident that I know of where Congress has said, in this case and this case only, we've determined whether there should be sovereign immunity. Typically that is ­­

Justice Kennedy: I assume that the President signed this legislation. This wasn't a veto override.

Jeffrey A. Lamken: No. The President signed a very large piece of legislation which included this piece of it. But I think the point of the matter is, if the political branches want to confiscate assets and distribute them, they should take accountability for that. It is a terrible lesson for the American public to say that my sure outcome is not to go to the courts and litigate my case there, but to go to the ­­ Alderson Court Reporting Official ­ Subject to Final Review

Justice Ginsburg: Mr. Lamken, can you tell me about ­­ I mean, when we set up the Iran U.S. Claims Commission, there were a lot of suits pending that had to be stopped. And that legislation told the courts, you have no choice; you must dismiss these cases.

Jeffrey A. Lamken: Yeah. And I think that was Dames and Moore. And that authority under Dames and Moore has been carefully circumscribed to cases where the United States has a settlement agreement or an international accord, and it is implementing the accord by settling the claims of its own nationals. But this is an effort to change the law in favor of its own nationals when there is no international settlement. That circumscribed authority doesn't apply.

Justice Kennedy: Well, suppose ­­ suppose the ­­ the executive and the President determines that if you have this legislation, then a settlement will be easier down the road. We're going to flex our muscles; we're going to bring these people to the bargaining table. You can't do that?

Jeffrey A. Lamken: If they want to act on the assets, if they want to act on anything ­­ a particular race ­­ that is one thing, but it is quite another to take one case and one case only and purport to dictate the outcome. Alderson Court Reporting Official ­ Subject to Final Review 1 If there are no further questions, I'd like to reserve the remainder of my time for rebuttal.

Chief Justice Roberts: Thank you, counsel. Mr. Olson. ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE RESPONDENTS

Theodore B. Olson: Thank you, Mr. Chief Justice, and may it please the Court: Mr. Lamken's entire case is summed up by the one single pending case. I counted over 25 times that that phrase appeared in Petitioner's brief. Now I hear today that it's not one case; it's ­­ it could be multiple cases. It's a particular outcome. It's a particular property. What Congress did in Section 8772 is act pursuant to its core constitutional authority by legislating changes in substantive laws. And Petitioner admits multiple times in its brief, at page 26, 27, 52, 53, and reply brief pages 3, 5, 18, that substantive law was changed in this case. And the substantive law that was changed by Congress respected the execution of assets of a foreign sovereign judgment debtor. The judiciary determined in 19 cases that there was liability in ­­ in these cases by clear and convincing evidence that Iran sponsored terrorist Alderson Court Reporting Official ­ Subject to Final Review 1 acts ­­

Chief Justice Roberts: Well, the issue doesn't have to do with liability. It has to do with the authority to execute ­­

Theodore B. Olson: Yes, it does.

Chief Justice Roberts: ­­ which is a ­­ which is a separate matter.

Theodore B. Olson: Yes, it is a separate matter. But my point is ­­ and the ­­ the cases that are involved in this litigation are at pages 2a and 2b of the red brief appendix. There were 19 cases in which liability was determined, damages were determined, and then consolidated for the purpose of ­­

Justice Kennedy: Well ­­ well, suppose ­­ suppose it were one case. Suppose there were two pending cases ­­ a private person, private Jones v. Smith ­­ two separate cases under Federal law where there's a statute of limitations. Could Congress say, In Jones v. Smith the statute of limitations is hereby repealed?

Theodore B. Olson: Yes, Your Honor. And I think this is the Plaut case to which Justice Scalia ­­

Justice Kennedy: No. The Plaut case was a ­­ was altering a judgment after the fact. This is before the case is resolved. Alderson Court Reporting Official ­ Subject to Final Review

Theodore B. Olson: The legislation in the Plaut case involved specific pending pieces of litigation, some of which had not been reduced to a judgment; some of them had been reduced to a judgment, but that judgment had not been final in the sense that the appeals were not exhausted; and one case in which the appeals had been exhausted, and that judgment was final. This Court found that that violated the separation of powers, but that the change of the statute of limitations and the opinion for the Court in that case by Justice Scalia points out specifically that Congress can legislate to change an element of a cause of action, to change a rule of evidence that's an impediment to the plaintiff recovering, and can change the statute of limitations. And in footnote 9 of that case, the Court points out there's nothing ­­ there's no problem with particularized ­­

Justice Kennedy: No. No, you're ­­ you're ­­ you're correct that there was a substantial discussion about cases that had not been reduced to final judgment. But in my hypothetical, the Congress has two different rules: One for Smith v. Jones, the other for Doe v. Roe. Statute of ­­ otherwise the ­­ the case is the same. In your view, they can do that. Alderson Court Reporting Official ­ Subject to Final Review

Theodore B. Olson: Yes. In my view. And my opponent does not dispute the fact that Congress can change the rule of decision by changing the substantive law while a case is pending. The courts have the obligation to apply ­­ this goes back to the Schooner Peggy case in 1801.

Justice Ginsburg: In ­­ in answer to ­­ to Justice Kennedy's question, there might be a problem, but not separation of powers. I mean, there could be an equal protection issue.

Justice Kennedy: Or delimiting.

Chief Justice Roberts: Well, what if ­­

Theodore B. Olson: Yes. May I answer?

Chief Justice Roberts: Sure.

Theodore B. Olson: Yes. And we point that out in the brief that there ­­ to the extent that there are violations of individual rights, the bill of ­­ the framers of the Constitution put provisions in the Constitution to deal with that kind of situation, Ex Post Facto Clause, the Bill of Attainder Clause, the Due Process Clause, which incorporates principles of equal protection for the Federal government.

Chief Justice Roberts: What if, Mr. Olson, Congress passed a law that said, you know, there are a Alderson Court Reporting Official ­ Subject to Final Review 1 lot of challenges to the statutory interpretation under a particular statute, say the Health Care Act, and it said in any case involving a challenge to the statutory interpretation of the Secretary of HHS of that act, once it finds jurisdiction, the Court will enter judgment agreeing with the Secretary's purpose.

Theodore B. Olson: I think that comes somewhat closer to the Klein case, where the Court was talking about an ­­ an area where the Supreme Court, this Court, in ­­ in the McCardle case and the other case that's mentioned in that ­­ in that decision, where the ­­ where Congress was directing a result that was inconsistent with decisions that this Court had already made with respect to the pardon power. So ­­

Chief Justice Roberts: Well ­­ well, but ­­ I mean, this Court has a lot of decisions about how to interpret statutes. And what Congress is saying in my hypothetical is, well, that's good for you; we want you to adopt the Secretary's interpretation in every case involving it.

Theodore B. Olson: In ­­ in pending cases, that would be much like the Robertson case where there were two pending cases involving property ­­

Chief Justice Roberts: But by ­­ by saying that, you're saying it's okay. Alderson Court Reporting Official ­ Subject to Final Review

Theodore B. Olson: I'm saying that it's okay ­­ I ­­ I ­­ I believe it's okay, under the circumstances, because what the ­­ this Court said in Robertson in a unanimous opinion was that that ­­ that that type of legislation is, to the extent it is changing the underlying substantive law, that is permissible. Congress may do that. Now, the ­­

Chief Justice Roberts: I think that's a little surprising. In other words, Congress can pass a statute and then say whenever the statutory interpretation of the executive branch is challenged, you, Court, will enter judgment in favor of the Secretary.

Theodore B. Olson: Well, what I think the ­­ your ­­ your hypothetical included two components. One where the Congress of the United States passed a statute saying that hereinafter this particular law will be interpreted in this particular way. That is a change in the substantive law which, in the Miller case ­­

Chief Justice Roberts: Not in a particular way. They don't care. They don't think this clause ought to be interpreted this way. They are just saying whenever it is challenged, you, Court, adopt the Alderson Court Reporting Official ­ Subject to Final Review 1 Secretary's interpretation.

Theodore B. Olson: Then ­­

Chief Justice Roberts: We don't know what the interpretation is going to be. We just trust the Secretary ­­

Theodore B. Olson: Well ­­

Chief Justice Roberts: ­­ more than we trust the courts.

Theodore B. Olson: Unfortunately, I guess, I know some might say that Congress does that all the time, by providing authority in administrative officials to interpret the statute. And then this Court, under various different provisions that you've decided, say that we will accord deference to that ­­ under various circumstances ­­

Chief Justice Roberts: But there's a difference between causing ­­ affording deference and entering a judgment.

Theodore B. Olson: I ­­ if ­­

Chief Justice Roberts: Let's make it even clearer: The ­­ the ­­ the Court has issued its decision saying it agrees with the Plaintiff's interpretation, but the mandate hasn't issued yet, and Congress says, boy, we don't like that decision. They pass a law saying in that case, this is the Alderson Court Reporting Official ­ Subject to Final Review 1 interpretation you should adopt.

Theodore B. Olson: I ­­ I ­­ I believe that as long as that case is pending and is not final, allow the Plaut case. And the statute of limitations, we don't like ­­ Congress doesn't like the interpretation or the application of a particular statute of limitations; Congress can say we're changing the statute of limitations, in a sense, by saying just as you said.

Chief Justice Roberts: Well, they don't say, "We're changing." What we say, "We want you to enter judgment in this case in favor of the Secretary."

Theodore B. Olson: Well, I think that you now moved it further, to the point where the Congress is directing, with respect to a particular case, the outcome between A and B. But to the extent ­­ and this is Robertson. So the ­­ and ­­ and that argument was made, and that argument was sort of adopted in the Ninth Circuit. But this Court unanimously reversed the Ninth Circuit in that case. The same ­­ essentially the same argument was made ­­ if you look at the briefs and look at the Robertson decision, the same argument was made there that was being made here. And ­­ Alderson Court Reporting Official ­ Subject to Final Review

Chief Justice Roberts: And just so you understand what I'm concerned about. You know, there are places in the world where courts function just the way our courts do, except every now and then, when there's a case that the ­­ the strong man who runs the country is interested in because a crony is one of the parties or whatever, and he picks up the phone and he tells the court, You decide this case this way. And I don't care what you thought the law was, decide it this way.

Theodore B. Olson: Yes.

Chief Justice Roberts: I'm not sure I see what the difference is here.

Theodore B. Olson: Well, I do. I ­­ I respectfully feel that there are many differences. Here, what Congress did ­­ and my opponent concedes that the substantive law of foreign sovereign immunity from execution was changed substantively. And what you said in the Miller case and ­­ and repeating what was said in the Robertson and the Plaut case, is that if the substantive law is being changed, there's no problem under Klein. There's not a separation of ­­ separation of powers problem. And so to the extent that ­­ and I agree with you, that this system that we have wouldn't Alderson Court Reporting Official ­ Subject to Final Review 1 tolerate Congress directing an outcome of a specific case: A must win and B must lose. And there might be implications with respect to the Due Process Clause, the Bill of Attainder Clause, if ­­ if it would involve some sort of punishment, or ex post facto issues in ­­ in ­­ in the criminal context.

Justice Scalia: What about the Equal Protection Clause?

Theodore B. Olson: The ­­

Chief Justice Roberts: This law applies only to me. Everybody else, it comes out differently.

Theodore B. Olson: Yes. So to the extent that the ­­

Chief Justice Roberts: Don't you think there ­­ don't you think there can be an equal protection ­­

Theodore B. Olson: The Federal Constitution imports equal protection principles in the Due Process Clause; that is correct. But what we have here, we have multiple cases where the judicial function was, first of all, to decide liability in individual cases. And liability was determined by clear and convincing evidence that the government of Iran sponsored terrorism that killed and maimed American citizens. And then there was a decision by the judiciary in 19 different Alderson Court Reporting Official ­ Subject to Final Review 1 cases that there were damages to be awarded.

Justice Breyer: Is that the ground? I'd like you to perhaps repeat, but I think pursue what the chief justice was bringing up. The example that I thought of is imaginary. The SEC has a rule, and it says a winning plaintiff in a 10b­5 case cannot attach assets that are in a trust that the defendant has commingled the assets with his wife who's not a defendant. Can you imagine that rule? I'm just trying ­­ it's something like a Spendthrift trust or what I'm trying to do is get a Spendthrift trust in the Federal context. Now, Congress passes a law, and it says in case 1, 2, 3, 4, 5, the petitioner can reach the mingled assets. Okay. Period. Constitutional? If not, why not?

Theodore B. Olson: That presents more significant difficulties that are closer to the line that the Chief Justice is pursuing ­­

Justice Breyer: What?

Theodore B. Olson: To the extent ­­ to the extent that this is Robertson, to the extent that that court can interpret that under these circumstances, the law, with respect to attaching the trusts or commingling of assets, will be thus. And that's the interpretation that this Court or another court can give to it. Alderson Court Reporting Official ­ Subject to Final Review

Justice Kennedy: When you say it's closer to the line, what line? That's what we're trying to ask.

Theodore B. Olson: The line of directing an outcome in a particular case with respect ­­ and this is Klein, where the Supreme Court was directing the outcome, the interpretation ­­ where Congress was directing the interpretation of the meaning and significance given to a pardon where the court had already decided in a final decision what the outcome of that case ­­

Justice Breyer: Well, I thought your answer to the hypothetical ­­ have you got the hypothetical in mind? All we have is a statute that says in case 1, 2, 3, you can, in effect, reach the assets, winning plaintiff in the two 10b­5s of the Spendthrift trust. And that's all it says. It doesn't work for the future. It doesn't work elsewhere for the past. It works for this case. Now, that might violate several things. But I want to know what, and does it violate something, and does it violate this principle that they are bringing up about not deciding for a particular case?

Theodore B. Olson: Well, I ­­ and I think there is no not deciding for particular case principle embedded in the separation of powers concept. There is an Alderson Court Reporting Official ­ Subject to Final Review 1 instruction to the judiciary to decide a case a certain way that the Court talked about in the Plaut case, but that is not involved. And the Court in Plaut in that footnote to which I referred said that there is no constitutional impediment to Congress legislating for a class of ­­

Justice Breyer: Now, can I do this? Can I say perhaps, the case I just gave you, Spendthrift trust, legislation for this one plaintiff, maybe they can't do that. But if we're talking about Spendthrift trusts in Iran, they can, because that's the foreign affairs power and because the President and Congress both agree that that's an appropriate exercise of the foreign affairs power.

Theodore B. Olson: Yes. And that's ­­ I think the government will address that in more detail. But we did discuss in our brief that the power of the President and ­­ this is ­­ this is the power of the President and Congress working together. Congress passed the statute. The President signed the statute. The President blocked the assets. By the way, these assets are in the United States illegally. There's already been fines imposed with respect to the laundering of these funds that put them in the United States. This is a case involving the execution of assets of a foreign sovereign in the United Alderson Court Reporting Official ­ Subject to Final Review 1 States who could hardly imagine a case where the power of the executive and Congress working together with respect to foreign policy and terrorism have.

Chief Justice Roberts: I suppose this applied to us as well, right? Congress can tell us how to rule on cases pending before us? You know, they have a committee every year at the start of the term. They say, well, what cases are up there? They read the briefs. And they say, well, we think this one should come out this way. And they pass a law telling us, in case number 15185, the Supreme Court will enter judgment, or, you know, more specifically directed to the pending matter.

Theodore B. Olson: I think that there is probably a point where if the Congress is directing the court to decide a case a certain way, irrespective ­­ and what you said in the Miller case ­­

Chief Justice Roberts: Well, it doesn't have to say the petitioner wins. It sees what the question presented is, and then they say in any case in which, and then read the question presented, you can attach the funds or you can recognize Puerto Rico as a sovereign or whatever else the case involves.

Theodore B. Olson: Well, Mr. Chief Justice, what you said in Miller, quoting the Robertson case and Alderson Court Reporting Official ­ Subject to Final Review 1 quoting the Plaut case, is whatever the precise scope of Klein ­­ because I think that's what you're referring to ­­ later decisions have made clear that its prohibition does not take hold when Congress amends applicable law.

Justice Kagan: Does that mean, Mr. Olson, if I could, you're conceding that Congress could not say, we have a particular case, Smith v. Jones, Smith ought to win? Congress cannot say that, right?

Theodore B. Olson: Well ­­ and yes. That would also implicate due process and possibly a takings and other ­­

Justice Kagan: No, just under the straight separation of powers argument, that would be adjudicating if Congress said Smith wins in this case?

Theodore B. Olson: I think that unless the Court feels that what Congress is really doing is changing the underlying statute, the substantive provision that ordains that result ­­

Justice Kagan: I was giving you a simple hypothetical. I thought that you already answered this, but maybe not. Congress says, we see this case, Smith versus Jones. Smith wins.

Theodore B. Olson: I agree with you, but ­­

Justice Kagan: That's no good. Alderson Court Reporting Official ­ Subject to Final Review

Chief Justice Roberts: Agree with her what?

Theodore B. Olson: Agree that that would implicate concerns about separation of power, just directing a judgment. But to the extent ­­

Justice Kagan: So if that's right, now Congress takes a look at this case and says, we can't just say Smith wins. And then we just ­­ we take a look at the case and we say, oh, if you just tweaked the law in this particular way, Smith would win. So we tweak the law in this particular way for this case only. But we don't say Smith wins. We just say we're tweaking the law in this particular case for this case only. Is that all right?

Theodore B. Olson: Yes. Because in the Plaut case the Court talks about the fact that Congress can enact legislation and it ­­ is it some case or is it ­­

Chief Justice Roberts: It's not the Plaut ­­ it's not the Plaut case. It's not even tweaking the law. As in here, it's saying, an issue has arisen in this case of whether or not this and this, and in that case, case number 14 whatever, the answer is this. Now, it makes it clear that Smith wins, but they don't just say that. They say, you're arguing this in this case. In this case you have to rule in favor of Smith and then the judgment. Alderson Court Reporting Official ­ Subject to Final Review

Theodore B. Olson: You have ­­ in order to win, you have to have a statute of limitations that comes out this way. And we are legislating with respect to these set ­­ this set of circumstances that the statute of limitations will be different, and that is Plaut case and ­­

Chief Justice Roberts: And all this Court has to do is sign on the dotted line?

Theodore B. Olson: Well, Congress has made a determination by using its power to change something that will affect the outcome of a case. Every time Congress passes a statute, it affects the outcome of future cases and pending cases. The Schooner Peggy said that Congress may do that, and that had to do with the Treaty, in connection with the pending case. And until that case is final, Congress can change the substantive law. And if that is the import of Justice Kagan's question, which I take it to be, that is within Congress's power. There's no limiting principle. We heard it today. The single pending case was ­­ that was mentioned 25 times in Petitioner's brief went out the window. Now it can be, well, two cases, nine cases, seven cases. What is the limiting principle here? There are limiting principles in the Constitution, specific provisions. But we're talking about separation Alderson Court Reporting Official ­ Subject to Final Review 1 of powers. And what this Court has said repeatedly is if the legislation can be interpreted as changing the underlying substantive law, that is not ­­ whether it's particularized or not and even if it's a legitimate class of one, as that footnote in the Plaut case says. And there have been private bills ­­

Justice Scalia: It does say that. But why has the United States never done this before? That's what troubled me about the case. You know, when 230 years have gone by and never before has the government done something like this. I wonder, you know, maybe Congress didn't think it had the power to do it.

Theodore B. Olson: What is ­­ what is, Justice Scalia, something like this, as ­­ as you did point out in that footnote in the Plaut case, there have been individual pieces of legislation, special bills throughout the Court's history. There have been changes in the copyright laws that are ­­ benefitted particular copyright holders or patent holders, or Indian ­­ claims to Indian tribes and so forth. There is particularized ­­

Justice Scalia: Doesn't name ­­ doesn't name a particular case and say for purposes of that case ­­

Theodore B. Olson: Well, if you're ­­ Alderson Court Reporting Official ­ Subject to Final Review

Justice Scalia: ­­ the law will be thus and such.

Theodore B. Olson: I ­­

Justice Scalia: Do you have a single case where ­­ where Congress has ever done that?

Theodore B. Olson: Yeah. I ­­ what I would say, Your Honor, is that Congress does all the time with respect to particularized legislation favoring a particular individual or not favoring a particular individual. And it can't be a constitutional principle that if you put a case name in ­­ in the change of the law, all of a sudden it becomes unconstitutional. Or you could do it today but you can't do it tomorrow because someone filed a lawsuit.

Chief Justice Roberts: Thank you, counsel. Mr. Kneedler. ORAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE RESPONDENTS

Edwin S. Kneedler: Mr. Chief Justice, and may it please the court: This Court has held since the days of the Schooner Peggy that Congress may amend the law and make it applicable to pending cases, and the court must give effect to that law. That is what Congress did here, and after the district court made the determinations that Alderson Court Reporting Official ­ Subject to Final Review 1 triggered the application of this law ­­

Justice Kagan: But usually when we say that, we're talking about amending the law that has effect beyond the particular pending case. And there we say, yes, absolutely, Congress can amend the law. Congress knew that it would affect these pending cases. No problem because Congress passed something, you know, that was within the scope of its legislative powers to amend law affecting this case and others. When you take out the "and others," that seems to create a different kind of problem, one where Congress is doing our job rather than its own.

Edwin S. Kneedler: I ­­ I think not, Justice Kagan. And there's several important principles underlying that. One, the Footnote 9 in ­­ in this Court's decision in Plaut said that there ­­ that imposing individual duties or liabilities on a particular person; in other words, a particular law, private law, there's no limitation on that in the U.S. Constitution. Counsel for Petitioner has mentioned various State law decisions that have said special bills are not permitted. This Court's decision in Paramino distinguishes those cases and said, yes, some State constitutions have that, but the Federal Constitution, Alderson Court Reporting Official ­ Subject to Final Review 1 as a matter of separation of powers, has no limitation on special laws. There may be equal protection issues, bill of attainder issues, or special Article I powers like bankruptcy, where there ­­ where there's a Uniformity Clause and you can't have a State statute affecting a particular case or dispute. The second point is if Congress is able to legislate with respect to a specific dispute, and it's done it, for example, with respect to railroad labor disputes at ­­ in the Maine Central case, and this Court's decision on Burlington Northern mentioned there, where Congress ­­ there's a labor dispute, Congress comes along and prescribes the results of that dispute. That's a specific law. It's ­­ it's okay. It can't ­­ it can't be rendered unconstitutional just because there happens to be a suit pending about it.

Justice Kagan: Mr. Kneedler, do you ­­ do you agree with what Mr. Olson said, that Congress can't just pick a winner in a particular suit? Congress can't say Smith wins in this case ­­

Edwin S. Kneedler: Absolutely. The ­­ the straightforward principle is whether Congress is amending the law or whether Congress ­­

Justice Kagan: Okay. But then ­­ Alderson Court Reporting Official ­ Subject to Final Review

Edwin S. Kneedler: ­­ directing a result under existing law.

Justice Kagan: The question that I gave Mr. Olson ­­ and I ­­ I'm searching here for an answer ­­ is ­­ is what happens if rather than just picking the winner, Congress amends the law, tweaks the law, modifies the law in such a way ­­ as to only this case ­­ in such a way that it's absolutely clear that the effect of that will be to pick a winner?

Edwin S. Kneedler: I think if Congress is amending the law, it can do that. And let ­­ for example, in the Schooner Peggy, which involved an international treaty in ­­ in the court of foreign relations, and that's another reason why what Congress did here, I think the court should owe special deference to. But in the Schooner Peggy, if there had been only one ­­ that was a treaty that required each party, the United States and France, to restore ships to the other nation. There was a pending prize case. If there had been only one ship seized in the ­­ in the United States, we ­­ we don't think any principle in Article III would prohibit giving ­­

Justice Kennedy: But your ­­ your answer was there's a difference between amending the law and Alderson Court Reporting Official ­ Subject to Final Review 1 directing a result in the same case. That seems to me different from what Mr. Olson was arguing.

Edwin S. Kneedler: No. I think ­­

Justice Kennedy: What ­­ what is the principle that would prohibit directing the result in a specific case? A separation of powers principle?

Edwin S. Kneedler: Yes.

Justice Kennedy: So we are ­­ so ­­ so if we interpret this matter before us as directing a result in a particular case, the Petitioners prevail?

Edwin S. Kneedler: If ­­ if it's directing a result under preexisting law without an amendment. If the Court interprets the law that way, then ­­ then you would be correct. But Congress amended the law ­­

Justice Kennedy: I'm ­­ I'm not ­­ I'm ­­ you're quite articulate. I'm not sure I follow.

Edwin S. Kneedler: Well ­­

Justice Kennedy: All ­­ all of a sudden now we find that there is a separation of powers of principle; that you cannot direct a result in a particular case. It seems to me that's inconsistent with the argument that your colleague Mr. Olson was making.

Edwin S. Kneedler: No. I think what Klein ­­ what Klein has come to be understood to stand for is Alderson Court Reporting Official ­ Subject to Final Review 1 Congress can't direct a result in a case without changing the law. In other words, Congress comes along ­­ Congress comes along and says, you should find it ­­

Justice Kennedy: Suppose they ­­

Edwin S. Kneedler: ­­ this way.

Justice Kennedy: Suppose they've changed the law for this particular case?

Edwin S. Kneedler: It is still an amendment of the law, whether it's for a particular case or a general ­­ general ­­

Justice Kennedy: Well, I find that a very odd distinction.

Chief Justice Roberts: You're saying Congress has to be cute about it. They can't say Smith wins. But they can say in the case of Jones v. Smith where the critical issue is this, we can change that in a way so Smith wins. And don't worry about the law generally, because it's just this case.

Edwin S. Kneedler: But ­­

Chief Justice Roberts: It's just a cute way of saying Smith wins.

Edwin S. Kneedler: No. I ­­ I don't think that's fair, Mr. Chief Justice, because if Congress ­­ if ­­ if specificity is not a problem before a lawsuit Alderson Court Reporting Official ­ Subject to Final Review 1 is filed, it doesn't become a problem when ­­ when a law ­­

Chief Justice Roberts: It becomes a problem ­­ with respect, it becomes a problem because our job is to decide cases. And before a lawsuit is filed, there's no case. But when there is a case, Article III says that's our job. Their job is to pass laws; our job is to decide a case. When there's a dispute under one of the laws they pass, that's our job.

Edwin S. Kneedler: But Congress has amended the law by ­­ by making assets attachable that would not otherwise have been attachable.

Justice Breyer: If you want to be cute, Congress has 4,000 ways of being cute. And I can't quite see this Court trying to police those ways.

Edwin S. Kneedler: And Congress ­­

Justice Breyer: And ­­ and indeed, I think I'm right in saying we had hundreds of private bills that were written in all kinds of ways and weren't ­­ to benefit individuals, and some of them might have been subject to cases and others not. The unusual thing about this case is it refers to a particular docket number.

Edwin S. Kneedler: It refers to the assets in a particular docket number, and we think that's ­­ Alderson Court Reporting Official ­ Subject to Final Review 1 that's ­­

Justice Breyer: Can't anyone join? That is to say, if a person today, or if there is some person who has the appropriate judgment, an antiterrorism judgment against Iran, are they perfectly free to join into this case?

Edwin S. Kneedler: Under the statute, they would be. But I ­­ if I ­­

Justice Breyer: I would ­­

Edwin S. Kneedler: ­­ could just say what's ­­ what's also critical about this case is the foreign relations context in which it arises. This ­­ this Court has recognized, for example, the ability of the executive to suggest immunity or nonimmunity in individual cases for foreign sovereign immunity. Those are case­specific determinations, and they affect the case. They may require dismissal of the case, just like the Schooner Peggy required dismissal of the case. The ­­ the rule of law required it. It wasn't Congress telling the Court to dismiss the case. The rule of law that was to be applied, the change of the law required dismissal of the case ­­

Justice Sotomayor: Mr. Kneedler, why is this different than the Chief Justice's example? Alderson Court Reporting Official ­ Subject to Final Review

Edwin S. Kneedler: Because what ­­ Congress changed the law, and it did not purport to direct a result under existing law. It changed the law of foreign sovereign immunity by removing a possible defense that Central Bank funds were not subject to attachment. It changed ­­ it changed the law by overriding State ­­

Justice Sotomayor: But for only this case.

Edwin S. Kneedler: Yes, but ­­ but ­­

Justice Sotomayor: And only this sovereign.

Edwin S. Kneedler: But ­­ as long as Congress is amending the law, there is not a separation of powers problem. Maybe an equal protection problem, there may be a bill of attainder problem, something like that. But in terms ­­ in terms of the judicial function, the judicial function is the same whether the law is general or whether the law is particular.

Justice Breyer: Can we ­­ would this resolve the case correctly, in your view on your side, were we to say whatever the general principle is, this is a case which is against you. It refers to a case by number, the statute. Before you is the fact that anyone can join, and there are hundreds or dozens of such plaintiffs. And moreover, on the other side, it ­­ it refers to $1.75 billion worth of assets in all kinds of Alderson Court Reporting Official ­ Subject to Final Review 1 different securities and obligations, and now perhaps in cash being held in New York. So whatever we're talking about, though the number suggests a particular case, the facts of the case suggest far more generality than is true of most cases.

Edwin S. Kneedler: And that is certainly ­­

Justice Breyer: Is that true or not true?

Edwin S. Kneedler: That ­­ that is certainly true in this case. It is a pool of assets that, under this Court's decision in James and Moore, emphasizes the need for Congress and the President to be able to take hold of assets, whether it's a small amount or not for two principal reasons: To use as a bargaining chip and also to compensate people who may be injured. And ­­ and frankly, also to sanction. This law does both of those things. It ­­ it ­­ the ­­ the freezing of these assets is a bargaining chip, and you don't have to bargain ­­ pay all your chips at one time. A bargaining chip may mean you want to use the ­­ one bargaining chip, one set of assets this time and hold off on the other ones. The executive and President and Congress need great flexibility in the area of national ­­ of national affairs.

Justice Sotomayor: Does the government have Alderson Court Reporting Official ­ Subject to Final Review 1 a position on the Respondent's argument that we have an alternative ground to affirm on? And that would be that their ­­ these assets were ­­ could be executed under Section 201(a)?

Edwin S. Kneedler: We have not taken a position on that. That ­­ that refers tray under a number of issue that were briefed in the court of appeals on ­­ on that question. So we have not taken a position on that. Here, we're here to defend this act of Congress which we think Congress enacted to address this particular dispute. And if ­­ if a pending lawsuit would prohibit, would ­­ would interfere with the flexibility of the executive and Congress to solve a dispute by disposing of assets to pay particular judgments, that's exactly what the Court feared in Dames v. Moore ­­ the pending lawsuits. Just because one happens to be pending rather than the law or the executive order being adopted before a lawsuit should not be able to tie up the Federal government's control over national ­­

Chief Justice Roberts: Thank you ­­ thank you, counsel. Mr. Lamken, you have six minutes remaining. REBUTTAL ARGUMENT OF JEFFREY A. LAMKEN ON BEHALF OF THE PETITIONER Alderson Court Reporting Official ­ Subject to Final Review

Jeffrey A. Lamken: Thank you. I'd like to begin by going back in history to answer Justice Kennedy's question about a law that says we're going to lift the statute of limitations from one plaintiff and one plaintiff only and nobody else. And the answer to that is early in the nation's history, State court after State court said, You cannot do that. It violates separation of powers. And the amazing part is not just that those courts held, but there's no case that can be cited by anyone saying that that is actually consistent with separation of powers from early in the framing, much less a law that goes further and effectively says that not only are you going to lift the statute of limitations, but we're going to change the loss. On this one case, plaintiff wins and defendant loses. That is completely foreign to our legal traditions. It's completely foreign to history. And for 200 years, Congress never once enacted a law like that. That reticence would be amazing if it were not but the fact that Congress understood that that was constitutionally prohibited.

Justice Alito: Well, could it be that Congress just thinks that's very unfair and that's why they haven't done it? Alderson Court Reporting Official ­ Subject to Final Review

Jeffrey A. Lamken: That ­­ that is one, but it could have been the same thing in Plaut, that for 200 years Congress thought it was unfair to get rid of a final judgment and eliminate repose. But the matter of the fact is that the fact that is also unfair, the fact that there may be individual liberty guarantees associated with it, doesn't mean it's not a separation of powers problem. Because separation of powers protects this Court. It doesn't ­­ and it does ­­ when it does so, it also has the effect of guaranteeing fairness and individual liberties for individuals. So separation of powers is important even if one would think that the law might be unconstitutional on other grounds. It's this Court's authority to say what the law is and to decide cases, without Congress passing a law saying, for this one case and this one case only.

Justice Alito: You think the issue here is the protection of the judiciary rather than providing a certain element of equal treatment for the people who are the litigants in the case? I would think it would be the opposite.

Jeffrey A. Lamken: I ­­ in this case, I think it is the rule of law. And the rule of law is something Alderson Court Reporting Official ­ Subject to Final Review 1 that is the integrity, it is the property, it is something that is ­­

Justice Breyer: What's lacking in the integrity if you have an enemy country, let's say. We've had many wars. You freeze a lot of their assets. There are people who would like to get ahold of some. And Congress gives the executive authority or itself goes through and says, we think these people should have this. We think they should have that. They should ­­ others could have the other thing. I mean, maybe it violates equal protection; maybe it violates due process, depending on how they do it. But in principle, what's wrong with exercising the foreign affairs power in that way?

Jeffrey A. Lamken: If the political branches give that power to the President, that only exacerbates the separation of powers problem with doing it this way. Because they do that and accept the accountability that goes with it, but they cannot try to give it an air of judicial legitimacy by instead taking and commandeering one case pending before the court and making ­­

Justice Scalia: You think that two ­­ one case ­­ is it one case or 17 cases or 34 cases? What is ­­ what is your position?

Jeffrey A. Lamken: My position is at least for one Alderson Court Reporting Official ­ Subject to Final Review 1 case and one case only, like this one, it is unconstitutional.

Justice Scalia: would be okay?

Jeffrey A. Lamken: The only ­­ the limiting principle I would put on it: If it dictates the outcome. And there's a limited category of cases against a single ­­

Justice Scalia: Limited ­­ limited category. Okay. So a hundred cases ­­

Jeffrey A. Lamken: Single ­­

Justice Scalia: ­­ is a limited ­­ is a limited category, right?

Jeffrey A. Lamken: Single defendants ­­

Justice Scalia: Yes.

Jeffrey A. Lamken: ­­ dictates the outcome.

Justice Scalia: Has to be a single defendant?

Jeffrey A. Lamken: Not willing to make ­­ not willing to make it ­­

Justice Scalia: If there are a hundred different defendants, it's okay.

Jeffrey A. Lamken: No. A hundred different defendants, and it's not ­­

Justice Scalia: Yes.

Jeffrey A. Lamken: ­­ and it's willing to make Alderson Court Reporting Official ­ Subject to Final Review 1 it ­­ yes, I think at some point it crosses the line to mean ­­

Justice Breyer: A single defendant that represents a hundred million people?

Jeffrey A. Lamken: At some point, Justice Breyer, the line is between adjudicating a particular case and actually enacting law. And when Congress goes across the line and says, this case and this case only ­­

Justice Kagan: And when you say, dictates the outcome, what do you mean by that phrase?

Jeffrey A. Lamken: I mean when the ­­ when Congress enacts the law, there's only one conceivable result. And that is exactly this case. When Congress enacted the law, there was one possible outcome. And that sort of law which says, in this one case, here is going to be the result, is entirely foreign to our legal tradition. That kind of law the framers railed against, and the separation of powers was meant to get rid of. If it's ­­

Justice Ginsburg: Mr. Lamken, you ­­ even ­­ let's assume your argument prevails, your one­case argument prevails. There is still the open question of did TRIA statute, which was decided against Alderson Court Reporting Official ­ Subject to Final Review 1 you in the district court, right?

Jeffrey A. Lamken: Correct.

Justice Ginsburg: So that would have to be ­­ if you succeeded on the issue that you're raising here, would have to be returned.

Jeffrey A. Lamken: Yes. That would be an issue for the Court on remand. It's not within the question presented. Wasn't decided by the court below. It involves complex questions of State law that are important, and where the Court hasn't heard from securities bar, which would be affected. So that is something that would ­­ yes, definitely be an issue for remand. But when it comes to 8772, there's only one result. And that's what ­­ that's that plaintiff's win. There is nothing in this nation's history ­­ and the lesson it teaches the populace is: If you want to win your case in court, don't hire a lawyer; hire a lobbyist. Don't seek recourse through judiciary; seek recourse before Congress for your private dispute. This Court should not lend its credibility, it should not lend its judgment, to that lesson, which is anathema to our judicial traditions. Thank you. We ask for the judgment to be reversed. Alderson Court Reporting Official ­ Subject to Final Review

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:04 a.m., the case in the above­entitled matter was submitted.)