The Reverse Side of the Coin: Looking at Bank Markazi v. Peterson through the Lens of Checks and Balances

The Reverse Side of the Coin: Looking at Bank Markazi v. Peterson through the Lens of Checks and Balances

Joseph Strain

Early in the morning of Sunday, October 23, 1983, two vehicles moved undetected through the streets of Beirut, Lebanon.[1] At 6:22 a.m., one of these vehicles, a yellow Mercedes truck brimming with 12,000 pounds of explosives, crashed into a barrack filled with sleeping United States Marine Corps peace keepers.[2] When the truck reached the center of the barrack, the driver detonated the vehicle.[3] The explosion that resulted was the largest non-nuclear explosion on the face of the Earth up until that point.[4] The devastating blast killed 241 United States Military personnel.[5] Minutes later, the second vehicle exploded, damaging the headquarters of the French peacekeeping contingent, killing 58.[6] The first explosion was the deadliest terror attack against United States citizens prior to September 11, 2001.[7] Few observers could have predicted that the victims and their families’ search for compensation would begin a ripple effect, leading some legal theorists to question the fundamental doctrines of the United States Constitution.[8]

Over thirty years after the hostages were released, Congress passed the Iran Threat Reduction and Syrian Human Rights Act of 2012.[9] This Act did many things.[10] One particular section, 22 U.S.C. § 8772, was worrisome to the Iranian National Bank, Bank Markazi, and American Constitutional Law scholars.[11] Congress, in order to allow the families of the Beirut victims, and other victims of state sponsored terror, to recover directly from the Iranian government, changed the rules.[12] Congress allowed the plaintiffs in pending litigation to reach Iranian State assets in terror related cases.[13] In the statute, Congress explicitly referred to the case by name and docket number.[14]

Legal-scholars, including Chief Justice Roberts and Justice Sotomayor, have theorized that this statutory scheme violates the foundational doctrine of separation of powers.[15] They argue that by prescribing specific rules of decision, applied retroactively, tailored explicitly to pending litigation, Congress unlawfully infringes upon the domain of the federal judiciary.[16] They argue that, as it is the role of the courts to decide “cases and controversies,”[17] a statute that mandates a decision in a pending case of litigation is impermissible.[18]

This Note will argue that these theories are unfounded. These factors, which include the plain language of the Constitution itself, contemporary documentation, and evolving constitutional theory, all indicate that the federal judiciary was meant to apply the law as written by Congress, and that Congress wielded extensive powers to check the judiciary.[19] Additionally, stare decisis has made clear that Congress’s power to legislate may be applied retroactively[20] and in a narrowly tailored fashion.[21] When these factors are taken as a whole, the Court’s holding in Bank Markazi v. Peterson should be neither concerning nor surprising.

[1] David C. Wills, The First War on Terrorism: Counter-Terrorism Policy During the Reagan Administration 62 (2003).

[2] Id.

[3] Id.

[4] Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46, 56 (D.D.C. 2003).

[5] Id.

[6] Wills, supra note 1, at 62.

[7] Peterson, 264 F. Supp. 2d at 47–48.

[8] See Cory J. Wroblewski, Bank Markazi v. Peterson: Threatening the Separation of Powers Doctrine, 94 Denv. L. Rev. 417, 417 (2017) (arguing the Court’s holding in Bank Markazi is a dangerous precedent, threatening our constitutional system).

[9] Iran Threat Reduction and Syria Human Rights Act, 22 U.S.C. §§ 8701– 8795 (2012).

[10] Id.

[11] Lyle Denniston, Argument Preview: A Serious Constitutional Dilemma, Scotus Blog (Jan. 6, 2016, 1:28 PM),

[12] 22 U.S.C. § 8772.

[13] Id.

[14] Id.

[15] Bank Markazi v. Peterson, 136 S. Ct. 1310, 1329 (2016) (Roberts, J., dissenting).

[16] Id.

[17] Id.

[18] Id. at 1336.

[19] See generally Elizabeth B. Bazan et al., Congressional Authority Over the Federal Courts 1–31(2005), Cong. Res. Serv., (detailing the numerous methods constitutionally available to Congress in checking the federal judiciary).

[20] Landgraf v. USI Film Products, 511 U.S. 244, 267–68 (1994).

[21] Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440 (1992).

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