As part of the debt-ceiling-catastrophe-diverting Fiscal Responsibility Act passed in June, Congress added a rider meant to ensure the Mountain Valley Pipeline would be completed without any further challenges or delays. The embattled MVP is years behind schedule due to lawsuits from environmental groups, most of which the MVP has lost in the 4th U.S. Circuit Court of Appeals in Richmond, Va.
The Fiscal Responsibility Act gave blanket approval to all permits and paperwork related to the MVP’s construction. It also said “no court shall have jurisdiction to review any action” related to the pipeline and if anyone took issue with the new law, it had to go through U.S. Court of Appeals for the D.C. Circuit (as requested by Sen. Joe Manchin).
A little more than a month later, the 4th Circuit Court of Appeals halted construction on the MVP — again — with two new stays.
So the country is faced with a question: Did the Circuit Court break the law when it issued rulings on the MVP despite Congress’ mandates? Or did Congress overstep its bounds and violate the constitutional separation of powers by forbidding the court to review anything related to the MVP?
The question will undoubtedly go before the U.S. Supreme Court, and all four members of West Virginia’s congressional delegation have filed friend-of-the-court briefs on behalf of the MVP, asking the high court to overrule the appeals court.
We are not constitutional scholars, but we are informed critical thinkers, and from the information we found, the decision in this case will likely rest on whether or not Congress was picking winners when it passed the rider mandating completion of the MVP.
The court system is presided over by Article III of the U.S. Constitution, which gives courts jurisdiction over “cases” and “controversies,” but it also allows Congress to carve out some exceptions: Congress can declare that the judiciary does not have the authority to hear a class of cases or it can change the underlying law to essentially make a case moot. What Congress can’t do, however, is tell the courts how to decide a case.
A 2018 analysis by the Congressional Research Service looked at how the courts and Congress have previously handled cases of congressional power over the judiciary. The Supreme Court’s ruling in U.S. v. Klein (1871) is generally understood to mean “that Congress’s authority to regulate federal court jurisdiction is limited by principles of separation of powers, in that it may not direct a court how to rule in a particular case or how to apply the law to the facts in the case at hand,” according to CRS.
But subsequent cases narrowed the scope of U.S. v. Klein, culminating in the split (4-2-3) 2018 decision in Patchak v. Zinke. In that case, the majority opinion authored by Justice Thomas (joined by justices Kagan, Breyer and Alito) said in its ruling, unless Congress explicitly says “in Smith v. Jones, Smith wins,” that Congress has not violated Article III by amending law underlying a specific case or by removing jurisdiction over a class of cases (even if there is only one case in that class).
Justices Roberts, Gorsuch and Kennedy dissented, saying Congress’ action in that case had directed the outcome of a single pending case and had therefore interfered with the power of the judicial branch. Roberts held there was no difference between Congress passing a law that says “the court lacks jurisdiction over Jones’ pending suit against Smith and one stating ‘In the case of Smith v. Jones, Smith wins,’ ” because “Congress has resolved the specific case in Smith’s favor.” (Justices Ginsburg and Sotomayor joined the majority in their final ruling, but disagreed with the reasoning; in that regard, Sotomayor sided with the dissenters.)
And that is basically what has happened here: By passing the rider mandating the completion of the Mountain Valley Pipeline and removing anything related to the pipeline from judicial review, Congress has essentially picked the winner.
What will be interesting this time around is that six of the justices who ruled on Patchak v. Zinke are still on the Supreme Court: three from the majority, one from the concurrence and two from the dissent. So it’s hard to say how the court will rule and if it will side with Congress and further affirm its ability to rescind jurisdiction or grant the MVP the court’s blessing without further eroding the separation of powers.
