FACTS An officer in Midvale, Utah was doing some paperwork in his patrol car when he was approached by man, later identified as Nitokalisi Fonua (hereinafter, “Nick”). Nick “looked suspicious,” mainly because he was “jittery, looking around and appeared to be very nervous.” Nick’s suspicion rating jumped dramatically when, for no apparent reason, he informed the officer he had stolen a white GMC Blazer, which he had parked nearby. Naturally, the officer asked Nick if he would show him the Blazer, and Nick said sure. When they located the Blazer, the officer walked over and looked inside. The first thing he saw was a sawed-off shotgun on the back seat. Then he noticed some markings on the shotgun, “markings that looked gang-related.” Nick told the officer that the key to the Blazer was inside his motel room at the Days Inn. Also in the room, he said, were his “cousins,” meaning “people he knows from the streets.” The officer asked Nick “if we could obtain the keys to the vehicle so we could turn those back over to the owner.” Nick said the keys “were in the room somewhere” and that he “didn’t care” if the officer went in and retrieved them. Nick also gave the officer his key to the room. When backup arrived at the motel, officers knocked on the door which was opened by a man named Vake. There were two other occupants: a woman and Kimoana, the defendant. By this time, the officers were aware that Kimoana—not Nick—had rented the room. The first thing the officers saw as the door opened was the woman pointing “an unidentified black object” at the wall. Concerned for their safety, they ordered the occupants to “show their hands.” Then they pat searched them. Finding no weapons (the “unidentified black object” was a television remote control), they holstered their guns. Although the officers already had Nick’s consent to search the room, they sought and obtained consent from Vake. During the search, they found a “long-barreled revolver” under a mattress. As the result, Kimoana was convicted of being a felon in possession of a firearm.

United States V. _____

I INTRODUCTION Some Supreme Court decisions withstand the test of time They are universally recognized as the fulcrums of modern constitutional law, even if they were decided before the turn of the prior century If students learn nothing else in their constitutional law courses it is the names (if not the actual holdings) of these decisions A few of these decisions are known primarily because we love to hate them1 In contrast, there are numerous Supreme Court decisions that are effectively buried, even before the Justices who authored them are buried themselves There also exists a third, less easily described category of Supreme Court decisions that are not readily classifiable under either of the other headings They are not nearly as well known as the doctrinal giants of constitutional law Nevertheless, they generally receive respectful, if not extensive treatment in the casebooks, largely because there is a widely shared sense that they are somehow of substantial significance in the flow of American constitutional or political theory The problem, however, is that no one is exactly sure how or why United States v Klein1 is just such a decision It is a case whose importance to the shaping of American political theory has never been fully grasped or articulated by scholars,3 and whose meaning has been comprebended by the federal judiciary-including the Supreme Court itselfvirtually not at all4 It is our view that once the Court's decision in Klein is appropriately dissected and extrapolated, both judges and scholars will be in a position to grasp the essence of an extremely important-yet often ignored or misunderstood-precept of American democratic and constitutional theory that lies at the hidden core of the Klein opinion In Klein, the post-Civil War Supreme Court held unconstitutional a federal statute that sought to employ Congress's constitutional power to make exceptions to Supreme Court appellate jurisdiction5 as a vehicle for requiring the Court to deem the issuance of a presidential pardon to be conclusive proof of disloyalty on the part of former Confederates6 A finding of disloyalty mattered greatly because those found to have been disloyal were statutorily disabled from recovering property that had been seized by the federal government In this Essay, we undertake to glean a vitally important, yet largely unrecognized, element of democratic theory from the reasoning contained in the Klein opinion that declared this legislatively directed rule of evidence unconstitutional and to explore its essential role in the healthy operation of the American political process We derive from Klein the need for a dynamic, intersecting relationship among three important actors in the American political system: the elected branches of government, the electorate that chose them, and the unrepresentative judiciary In this relationship, it is, paradoxically, the most undemocratic branch of government that is to stand as the policeman of the democratic process, seeking to assure the continuing viability of representative democracy and the integrity of the fiduciary relationship between the elected and the electorate It would surely not be a startling revelation to suggest that, in the American constitutional system, it is the insulated judiciary that is intended to police the elected branches of government What we derive from Klein, however, is a far more subtle precept of American political theory: that the judiciary has the constitutional power and obligation to assure that Congress has not deceived the electorate as to the manner in which its legislation actually alters the preexisting legal, political, social, or economic topography The legislative deception that is of concern, we should emphasize, does not go to the legislators' private motivation in enacting the legislation, or what incidental or collateral effects the legislation may have, beyond its direct and immediate impact …

Legislative deception, separation of powers, and the democratic process: Harnessing the political theory of United States V. Klein

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.

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The Irrepressible Myth of Klein

In "The Irrepressible Myth of Klein" (University of Cincinnati Law Review, 2010), I discuss the meaning, scope, and continued relevance of the Supreme Court's historic decision in United States v. Klein (1871), arguing that Klein is not the judicially powerful a precedent many believe it to be. In this follow-up essay, I apply the insights of my analysis and exposure of Klein’s myths to two major pieces of legislation enacted as part of the ongoing War on Terror: The FISA Amendments Act of 2008 (granting retroactive immunity to telecommunications companies involved in warrantless surveillance) and the Military Commissions Act of 2006 (dealing with various issues surrounding the treatment and prosecution of terrorism detainees). I conclude that both laws largely survive constitutional scrutiny under Klein, thus illustrating the lack of doctrinal vigor and power - the myth - of Klein as constitutional precedent.

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Constitutional Pathology, the War on Terror, and United States v. Klein

Following the dependable Examples and Explanations method, this reliable guide offers ample features and benefits: - each section provides students with a short account of the law, and includes a variety of concrete examples & explanations designed to uncover uncertainties in the law and reinforce key rules and concepts - cutting-edge coverage unveils many important recent developments absent in competing books, such as: - Hamdan v. Rumsfeld (non-Article III courts -- 2006) - Marshall v. Marshall (diversity of citizenship -- 2006) - The Class Action Fairness Act (diversity of citizenship -- 2005) - Terri Schiavo litigation (congressional control of federal court jurisdiction -- 2005) - Grable & Sons v. Darue Engineering (federal question jurisdiction -- 2005) - Empire Healthchoice Assurance, Inc. v. McVeigh (2006) - Exxon Mobil v. Allapattah (supplemental jurisdiction -- 2005) - Lance v. Dennis (Rooker-Feldman doctrine 2006) - Exxon Mobil v. Saudi Basic Industries (Rooker-Feldman doctrine -- 2005) - Habeas Corpus cases (2005-2006) - nuances and unsettled issues in the law are openly addressed - widely respected federal courts scholar, Professor Laura E. Little, transforms her global knowledge of federal courts issues in a format that students can digest and master - an accessible and clear writing style provides lucid explanations of complex areas of the law and breaks down doctrines into component parts. Page layout is designed for easy retrieval and understanding - a sensible and flexible organization caters to students with various learning styles. Topics are organized according to the various functions of federal courts, whichgives the book thematic coherence while still allowing students to use the content according to their own needs - visual aids, including several graphs and illustrations that illustrate both macro and micro understandings of the material, are designed to convey intricacies of rules as well as larger relationships among doctrines and institutions - examples demonstrate complexities and ambiguities in the legal doctrine, while the explanations demonstrate practical skills for coping with uncertainty in the law, anticipating and outlining arguments on both sides of a controversy. Combined, these model good lawyering and exam-taking techniques

Federal courts : examples and explanations

When the guns of war fell silent in 1865, Americans throughout the reunited states grappled with the logistics of peace. At virtually every turn lay nebulous but critical questions of race, class, allegiance, and identity. More pragmatic legal stumbling blocks could also be found strewn across the path to Reconstruction; some of them would ensnare the healing nation for decades to come. Among their number was notorious Supreme Court decision United States v. Klein (1872). Born on July 22, 1865 out of a small debate over the wartime seizure of Vicksburg cotton stores, Klein quickly evolved into a legal behemoth. In its tangles with the separation of powers, the presidential power of pardon, and the supremacy of the executive in judicial matters, United States v. Klein would ultimately amount to the very poster child of the snowball effect at work in Reconstruction law. Widely forgotten or overlooked today, the decision of United States v. Klein nonetheless stands as one of the most crucial battles of the American Civil War era.

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Heather L Clancy

Papers

Cotton, Clemency, and Control: United States v. Klein and the Juridical Legacy of Executive Pardon