well your argument this morning k sixteen for ninety eight patrick versus inky which again mr chief justice may please the court section to be of the gun lake act is unconstitutional because it is incompatible with several well established brands of this court separation of powers douras prudence as well as with article three itself with section two b congress directed the federal courts to dismiss a pending case otherwise properly before the courts as a consequence of that directive to dismiss with respect to mr patrick's case the courts were prevented from performing their constitutionally assigned responsibilities to decide cases before them and to say what the law is in the context of deciding those cases section two b is precisely the kind of legislative review of judicial decisions that the framers rejected when they designed the constitution and all of mr again when when you say directed that the case shall be dismissed are you referring only to the last few words of the five words were not in the statute that the case would come out differently i am not suggesting that i think it would still have come out differently for example if you dropped the reference dismissal but left maintain the result would be the same the same would be true if there had been a removal of judicial review in other words if two if the statute to contain just two a but not to be same result no that i understand it to be a different question from justice  it were the only part of the statute we had no to b to c is not at issue here so if we had to wait only we wouldn't be here arguing that there was a separation of powers violation part of the problem he said but if you had to be finished just show not be f drill court full stop you're saying that would be the same statute as the one we actually have it would still be unconstitutional it would now the omission of the shall be dismissed language is not without significance and if i may i'd like to explain the direction to dismiss is a quintessential judicial function it's not surprising that blacks dictionary in defining dismissal refers to it as especially a judge from a court doesn't mean that it's immunized from are you under separation of powers so the touchstone has to be in the relevant strands of the separation of powers prudence at issue here are really two parts one is has congress exercised the judicial power and or has congress prevented the courts from fulfilling its constitutionally assigned responsibilities i submit that both have occurred here as a result of what is in the actual to be but the same result would arise if you admitted just the words shall be decided the if miss is a just a jurisdiction stripping statute could you just say as simply as possible what the rule is that you would like us to adopt what is the  separation of powers which you would like us to adopt with respect to the purely jurisdiction stripping statute well i want to be directly responsive to your question but i also want to say and i've made this observation in the br i think the better view is that it is not yours to action on happy to elaborate on that later but if we assume its jurisdiction on the on that suppose following up on the initial questions if all that to be sad was that an action relating to the slammed shall not be maintained in a federal court would you say that is not a jurisdiction stripping statute that certainly looks more like a jurisdiction stripping statute the reason i say that if the better view is that's not always is at least twofold one is and i've been accused by some colleagues of taking our butt too seriously but this court went out of its way in our bar to announce to the world and to congress in particular that wanted a new rule that if a court wanted a statute to be viewed as jurisdictional you needed to clearly say so this statute doesn't say anywhere in its text in its headings that it's jurisdictional in fact to be the section we're discussing that that arguably strips jurisdiction of the from the courts uses the phrase no claims my research may have been faulty but i couldn't find a single case using that language in framing a jurisdictional snow if one of the things that to be does is to strip jurisdiction and if shall not shall not be maintained is a jurisdiction stripping provision then i don't see how you can win unless you have a rule that applies to your wrist action stripping statue maybe there are other things in this statute that are vulnerable so they could be severed so to go back to the question i asked if this is a statute that takes away federal court jurisdiction what is your separation of powers rule the rule of the rule i submit the court should adopt is if a statute is deemed properly it's probably construed as a jurisdiction strap statute it is still subject to separation of powers analysis that that much is clear from kline however whatever else about the case might be puzzling klein clearly establishes that the mere fact that congress affixes the label jurisdiction to a statute doesn't immunize it so then we return to our touchstone principles separation of powers when it deprives the federal courts of jurisdiction in this circumstance and what is the circumstance this circumstance is when it is directly overtly deciding a case or effectively over a case involving prayer in school  i think that raises serious but but somewhat different questions part of what's offensive here to the separation of powers principles is that congress is directing the outcome in a case it could be a set of cases and i submit by the way look looking to bank markazi if there had been a thousand cases just like patches i think the outcome would be the same time so the fact that it was one case is i think probative of assessing whether or not the congress is actually deciding a case rather than actually making the law to be able and if that so that i'm i mean i thought that you were suggesting a rule that said well when you direct one case that's unconstitutional but now you've just said you're not saying that so again coming back to justice leaders question i mean we know that congress can alter the jurisdiction of the federal courts and we know that congress can alter that jurisdiction and apply it to pending cases we've said that over and over again so what makes what would make this unconstitutional if we assume that this is a jurisdiction stripping statute because what congress has done is affected directly here but it could be and directly dictated the outcome of the case without changing the law so mr bennett's that whether the law or the jurisdictional lot that's what congress is change and congress is changing jurisdiction in so doing congress is changing the law we haven't said congress has to change you know substantive law here congress is changing jurisdictional law and it's saying you know yesterday you had jurisdiction over a certain category of cases today you don't now why is that unconstitutional or when is that unconstitutional that is unconstitutional when in the under the guise of chain of changing the rules with respect to jurisdiction the court is effectively deciding the case and then not letting the courts apply the new law either so both things have occurred here so in bank markazi and in robertson the reason why the survived separation of powers scrutiny was because they changed the law and they left the to the courts to apply to new cases you have the exact opposite here so mr king if i understand it the answer the question i think is that last clause the dismissal ordering the courts to dismiss the claim that up to that point shall not be filed or maintained as i understand you in your you're ok with that it's the directing the dismissal but if that if that's the only beef we have is that really a beef at all because that's a natural consequence of the jurisdiction stripping statute as mccar itself is justice ginsburg pointed out right so there's nothing left i think it's almost a virtual quote from mccardell right there's nothing left to be done but dismiss so where's the real beef here just a score situ i think what the collectively what the court's cases clause why should we care we should care because then what congress is doing is it's it's given carte blanche to dictate the outcome of cases just by affixing the label jurisdiction  to pending cases so that the two words that are operative here with respect to pending cases are shall not be maintained and shall be dismissed i'm not talking about the files so with respect to prospective cases we're not arguing that section two b would be unconstitutional because it wouldn't implicate the the strands of the separation of powers to do its jurisprudence that i was discussing so it's with respect to pending cases where both are shall not be it may not be maintained and shall be dismissed or both i don't think that's the question mr get i think the question is and this was what i started with would you be making the same constitutional argument if the last five words were not there and i took you to say yes you would be making the same constitutional argument and in so doing you separated yourself from your i mean because i understand your miki as justice course such does as saying that everything hangs on that flask five words and you are suggesting that not everything hangs on that last five words that you would have the exact same constitutional objections of those five words weren't in the picture do i have  right yes i think the fact that it includes the dismissal term is makes a particularly term that pernicious so i would say that's additional pushing it even flow beyond that atmospheric saw it but it but it's not just atmosphere x as i as i suggested earlier i think there's an argument to be made that the direction from congress to the courts to dismiss the case is telling the courts how to perform their duties in an impermissible way and i think then you do get again and i think that this is the underline promise of just such as question so take out the last five words and you were trying to explain why what then just seems a jurisdiction stripping statute is unconstitutional in there against the backdrop a very consistent precedent that we have that says that congress can take away the jurisdiction of the federal courts and can do so in a way that affects pending cases and and so why and when is that unconstitutional because you have to pierce the label of jurisdiction and returns of the basic principles which are is congress exercising judicial functions or is it preventing the judiciary from carrying out its act it seems that we we've been replicating what among lawyers anyway is the famous dialogue between professors wexler and hart about whether congress can achieve unconstitutional objectives by preventing federal courts from adjudicating claims that those provisions are unconstitutional you know during the civil rights era there were a lot of proposals in congress that said federal courts have no jurisdiction over any case in which bussing is sought as a remedy in those types of proposals are consistently  submitted when ever congress attempts to achieve an unconstitutional result by depriving the federal courts of jurisdiction so i would have thought your answer is is i would have thought you would have taken the position that i understand to be ascribed to professor hart in the dialogue which is that that is an indirect was way of achieving an unconstitutional result and is subject to the same objection that is my position and i don't i want to switch from personal jurisdiction to sovereign immunity in court for the reasons that the chiefest chief justice is talking about ok yes and patrick one i took the position that the court got sovereign immunity wrong and basically i argued that march already disagree that that the quiet title act really granted immunity and the majority disagreed and said this had to do that case and what congress did was settle the question which i believe it entitle to do and is not unconstitutional it ratified the acts of the secretary's taking of this land and by that act implicated the quiet title act and so if it did that i see this and i don't understand why it's not that waiver of sovereign immunity that the court did not recognize in pacha one and i raise this for two reasons one i do think there's a difference between the congress coming in between two private parties and directing a result in favor of one private party i think that's a quince and sensual separation of powers question and a very very serious one but i think there is something fundamentally different about suits involving the government because sovereign immunity a chorus any suit against the government a matter only of larch s and the government's voluntary choice we have repeatedly to the century said the government can at any moment take away its sovereign immunity it can take away that niceness of giving you the in the unity so i see the potential of less of a problem with separation of powers if you got if the government  withdrawn suffering a move in the unity then it directing the outcome between private parties i would be really frightened if we let the government but so given that statutory history says that a suit can be maintained against the government why isn't this a sovereign immunity case why am i dealing with personal jurisdiction at all or separation of powers questions at all because with respect to both the text of the gun lake act as well as the statutory history i submit that sovereign immunity the restoration of sovereign immunity did not exist in the text no where mentions sovereign immunity if you look sovereign immunity given that i know of course the statutory history is to some extent in the eye of the beholder i look at it and i see given the history that you've just outlined that if what congress had intended to do was to restore sovereign immunity there would have been more case to make it go away to direct dismissal against patrick and ford's inky that's what that's what the statute says that's how the d c circuit i think properly understood it this suit had proceeded to conclusion would and patrick prevailed would he be entitled to costs he might be here and that certainly one of the things that would have to a number of things that would be addressed on remand and for the statute a and b are not sever and i'm wondering if it helps your position to say that the congress is stripping him of certain rights that he had because of the litigation well there's no question i mean we'd have to go back on it is in fact constitutional and congress can say in two thousand and seventeen that when we took this into federal trust territory it intro's territory that was constitutional that's what it does we would not be arguing that i did i realize that but my question is would your client have a lawsuit what would be the basis for it because i thought his basis was that the taking of the land into trust was not lawful under a particular act because that just referred to tribes that were tribes in the thirty's right now this act says we don't give a tear we don't care about but we say that the government had the power to take it into trust anyway and we had that power to take it into trust when it did all right so if that's the law what is your client suing about well how can he win for purposes of your question i'm presupposing that that's the law but  one thing that happened here is we no court could make that determination you know but what your argument the argument the argument is that well we would argue that it's not retroactive we would argue this is it says ratified i understand i but i  court when this was ok that's your best organ no it's not it is not there was an argument made below that the the ratification talks about taking the landed to trust but that doesn't mean that it authorizes all uses of the property so there's a distinction between the go and there are other guy who are interested again could i am sorry to drag you around like this but the chief justice asked you a question and you indicated that you agreed with his understanding of when a jurisdictional statute violated the constitution and  you were interrupted i just want to hear a little bit more about what you think of his question sure i hope i have it firmly in mind and at the same time i want to try and answer some of your prior questions and the question is also i'm understood in that the chief justice is question because he gave you a theory you said yes ok but what does that mean yes yes why what congress cannot do is direct outcomes of a case even under the guise of jurisdiction let's go back to the smith wins hypothetical from bank markazi law if chief justice as examples were instances in which a hypothetical statute deprive the federal court of the opportunity to rule on violations of on constitute alleged constitutional violations the same is the question that justice ginsburg gave to you taking away jurisdiction over cases involving prayer in the schools or jurisdiction over equal protection violations but this is a statutory case it is although it has it's because there were the court in patchogue one address standing and sovereign immunity which at least have constitutional dimensions but there's no doubt about the fact that the underlying claims that issue in the pending complaint that still operative are statutory in nature  you can say no i'm asking because i don't want to get in the way of a good discussion and i honestly don't know the i don't know the answer is i mean just as in the case of the the empty bus in cases there's a constitutional violation that congress is trying to insulate from the view and that's the separation of powers and i took your question to be that these were not that these were identical situations this case and the situations that mr chief justice posited but that there were close cousins some to go back to question but to try more directly answer your question just to score such and i want to do save a few moments for rebuttal if a statute said we think smith should win and therefore we we determined effort courts shall not have jurisdiction that can't the fact that it says it's jurisdictional cannot possibly save it from a separation of powers scrutiny and analysis and this is substantially similar to that situation why it why is it substantially similar to that situation that makes it sound like it's because it's about a single case but you said that that wasn't your theory so what is your theory that we could change it to two ten smiths when we're in every case of smith the jones it's not the number it's the fact that congress is directing the outcome and it's saying that you win not because we've changed the law and not withstanding all law because we know two things about doesn't congress always do that when it strips the federal courts of jurisdiction over a category of cases because we have said that that applies depending suits so i guess the question is why aren't you saying that every time we said that we were wrong that any time congress changes the jurisdiction of the federal court and applies to pending cases that that's a separation of powers issue because sure and the other separation of powers cases of this court counsel that we should take a functional practical look at the particulars of the case and in this case unlike these hypothetical statutes you have congress clearly directing the outcome of a case where under all law this court held that his case may proceed the house report at page two said under existing law that the putting the land to trust was likely unlawful and the only thing that changed was congress said this case goes away it sounds like this is just based on your your analysis of congress's intent no i mean let's take a case that we had earlier in this term under the alien toward statute i don't know whether you're familiar with it but it provides jurisdiction in the federal courts for a suit by an alien concerning certain torts and we have a question whether a corporation can be sued suppose congress were to pass a statute that says that no federal court shall have jurisdiction of and we in toward statute suit where the defendant is a corporation or a limited number of cases involving that pending cases would that be unconstitutional we'd have to look at the particulars of the case and make a judgment based on the case w congress was directing the outcome of particular cases where was it functioning more in a legislative role well that's certainly i'm sorry well it's on i'm here for you but i would like to reserve i would you use a direct in the outcome of these cases but any time congress jurisdiction strips and that applies to pending cases it does direct the outcome of those cases once upon a time those cases could proceed now they can't so congress  directing the outcome of those cases in some sense that we've consistently held to be perfectly fine we might have been wrong in saying that's perfectly fine but we've said it a lot of times and this may being an example of what the court has talked about another context where line drawing can be hard again i step back and look at ask the fundamental questions is has the legislature overstepped its bounds traverse the boundary between the legislative function and the judicial function in deciding how cases should be determined congress's entitle to try and affect the outcomes but the process of how it does it very much matters and this is about as an egregious circumstance as i can imagine of congress actually dictating the outcome of a case by saying you shot must dismiss without connelly mr chief justice and may it please the court of the united states took title to the bradley property in two thousand and nine but the tribes operations on that land have been subject to great uncertainty ever since then nevertheless part of that uncertainty stems from this court's decision and path check one which interpreted the laws enacted by congress up to that point and concluded that the quiet title act did not bar petitioners challenge to the trust status of this land the court acknowledged impact check one that barring claims like petitioners is within congress's legislative power through the gun lake act congress did a couple of things it eliminated any doubt about the trust atus of this land by ratifying and confirming the secretary's action in two thousand five and congress also eliminated federal court jurisdiction over challenges to the trust status of this property thereby revoking the waiver of sovereign immunity in the a p a i suppose that on his interpretation and had built a facility on a neighboring property that was just completely inconsistent with the casino so that he's have some some serious reliance interest with this case be any different well there could be other constitutional concerns that may be implicated by congress by an act of congress that takes away vested property rights or something like that but they're they're not article three interests i don't think that it would violate the separation of powers for congress to enact a law that where they're taking away his expectations when he built on the property well again with the hypothetical case i may be able to bring some other sort of a challenge like a takings challenge or something like that i mean the score in bank marks was congress could still pass this statute yes and you know the court explained in bank markazi there are other limits imposed in the constitution on retroactive application of laws and so perhaps if there was some kind of a takings claim then regardless of section to be that the petitioner could bring some sort of a suit maybe  this be means he's best claim he thinks is not a constitutional claim that they've taken it away but he sees that in the background his best claim he thinks is to say that this law is not retroactive and that in the one nine hundred thirty s this tribe did not get was not one of the ones that that act protected that's his argument with be he cannot bring his claim in a state court he cannot bring his claim in federal court and there's no other person anywhere who even is dreaming of such a claim and therefore what b says does as i understand it is whatever general language they dress it up in it is taking the only case it is likely to be brought challenging the taking of this land into trust and challenging this later statute as well as being interpreted you know such and such and throwing it out of court so there we have though they have excellent language and have tried to make it general in reality an act of congress that does nothing other than take his case and throw it out of court and that he says is for the congress the legislative branch to enter into the judicial process and say mr plaintiffs in this case you lose what is your answer to that i've got a couple of answers to specifically to the second part on the first part i don't know if in this case you're talking about some sort of hypothetical relief that he's asking for regardless of whether this is a statute that's retroactive or not into retroactive god that's why i asked him the question i think i take his answer to my question was he retains certain arguments that he is not sufficient to deprive him of the right to use his property because a does not move this tribe's land into trust as answer the question about whether the congress is targeting one particular lawsuit in this case a couple of responses first is that this statute although that seems to the petitioner and it may be the practical effect that because his is the only case that's pending it's the only one that is dismissed this is not a statute that is directed toward just smith v jones smith wins this is a case that applies to any suit related what if it were what if the congress has said the secretary's decision to make the bread the property is confirmed and david patches shall not be maintained and shall be dismissed i don't think there's an article three problem with a case that takes away jurisdiction over even just one case it may have other constitutional concerns footnote twenty seven of bank markazi said maybe you could look to the equal protection clause if it's just a statute that targets one person and it's irrational there's no rational basis for it but we don't see any separation of powers problem with taking jurisdiction over a way over only just one in them so in that case is does the government recognize any limits on congress power to decide the result in a pending case to decide the result in a pending case yes but it i s saying smith wins isn't that what would an unconstitutional statute under the separation of powers look like vulgar viewpoint certainly smith wins would be an unconstitutional statute because in that case congress is just directing the result of a case without changing the underlying law well lets you know differently and we should so we should look at this and decide whether we think this is in substance different from smith wins i think that would be a perfectly fine way to do it and i think this case is different from smith wins in a variety of different ways is there a difference between smith wins and there's no jurisdiction over jones a suit yes and therefore smith wins yes i think that that is one of the differences between smith wins and this and the statute that's going on here even if you think even if you're now imagine a hypothetical statute that's just limited to smith v jones and again this court is the statute is broader than that it's congress has plenary authority to insulate itself from separation of powers arguments the statute that says in any case in which statute is alleged to violate the separation of powers federal courts have no jurisdiction you think that's ok no i think one and we haven't  contested in this case that the court can analyze to be to determine whether it violates the separation of powers that's what the whole case is about congress's has not insulated to be from that review and there petitioners bringing a constitutional challenge t not going to lightly assume congress is strip interesting and we need a clear statement harbaugh sebelius and whatever might have been permissible before congress is now on notice that it needs to provide a clear rule and this statute comes after those warnings from this court and help me under and why this statute is in fact jurisdiction stripping without reference to old past laws but after sebelius after language that similar we think it's like the appellate court equivalent but you've also got reed elsevier which says similar language to this no basically no claim shall be maintained or something like that that we hold wasn't  in this statute we think there's there's a lot of different things at play that make it a jurisdictional statute one being that it says a case can't be filed or maintained in federal court if it just says it can't be maintained maybe that could be something different but if it's i can't be filed even in the first place that parties filed things that's that could be claims processing to write you know well filing although this i mean so those are the two cases that petitioner cites in his opening brief one is that sebelius which is the claims processing twenty six b on the merits and have collateral consequences and wouldn't that be a real problem for article for a couple of responses i think requiring the the jurisdictional clear statement rule in this case flips the concept and i'm asking you to put that aside on this question because i think the court would and would want to invoke the constitutional avoidance principle to i'm asking you to again assuming this isn't for purposes of this question wouldn't we have a real problem because you are directing dismissal and dismissal wouldn't be twelve be want to be too p six and that has clear a consequence if i should court concluded that that congress was just telling the court that it had to dismiss this case on the merits then then yes i think that may be a problem but even if the court doesn't think that i mean even if you don't use jurisdictional language or you think the statute may not be taking away jurisdiction over a category of cases which we think it is like to come back to the sovereign immunity  point which is that you know the a p a provides the waiver of sovereign immunity and that's the statute that the petitioner has sued under the a p a doesn't apply if another statute precludes judicial  limitations on the quiet title act what the court said was you can't just use an officer suit to get around the quiet title x now that we have congress's waiver of sovereign immunity in the quiet title act you have to comply with those statutory provisions the same  relating to the land would a slip and fall no longer be permissible so i think there are some questions about just how broad this statute is we think it at least covers suits that relate to the trust status of the bradley property or the secretary's decision and congress's decision to take it into trust but any suit like that would be way past the statute of limitations who could even bring it well it may be outside the statute of limitations now i believe there was a regulation passed later in time that made the land a part of the tribes reservation which i guess there's questions about whether that could restart the statute of limitations but you know now and  also congress hasn't acted to a now and so if somebody wanted to bring a challenge to that then that would also be barred by to be in there with the little one there wouldn't be any challenge to that it does seem i mean you say well relating to could mean different things and it could but that would be for court to decide and it's not clear how they get to decide what relating means in line have to be which says if it does relate it's dismissed automatically and i guess i just don't understand we're saying it's an open issue how broad congress is a determination that these cases shouldn't be in federal court that says it's an open issue how broad to a is the that any action really well yes that any action relating to the bradley property can't be filed or maintained in sovereign immunity question you know that is the pedal governments are going nuclear you know they're there i'm like the king you can't sue me because i can do no wrong and it seems to me there's a real political accountability problem there because the statute doesn't say anything about sovereign immunity even if this and i didn't argue it even in the brief in opposition if i'm remembering well this is an argument that we presented to the court of appeals the court of appeal said they didn't need to reach it because they decided that this was a jurisdiction stripping statute but but even so it's really just another way of getting you to the point that the court lacks jurisdiction over the case that congress has changed the law and it takes you outside the scope of at no point to any case in which we've held there was simon and unity where the statute said nothing never mentioned either immunity or the united states as a party well again i think that in this context it doesn't matter if the statute is broader than just precluding claims against the united states because under the a p a what you're looking for in order to say that the a p a doesn't apply is a statute that precludes judicial review how much broader is it  it's somewhat difficult to decide this case without having some idea what relating to here means well it's hard to believe that this statute means what it literally says that no no action relating to the land  relating to mean in we think it at least means that you can't nobody can bring a statute that challenges the trust status of the land and the secretary's decision to take the land and to trust so i think here in the trust on my own track here you know this question is fascinating what we've been discussing and it's right there in b but i'm still stuck on and why we really have to get to be you said that all they've asked for is perspective really correct as far as perspective relief when this was passed in two thousand and fourteen it certainly in a talk of the indian land into trust yes that's what they're challenging prospect of leigh what's the argument well i particular hasn't brought challenges to section two a it certainly hasn't brought any constitutional challenge as to what congress has done in sections so we has to get into the most fascinating and difficult questions in what one of my i heard once described as the course but prospect of lee this land is not indian trust land that's i think that your views yes you think that's correct under two and i gave you a get in a minute on the other side exercise oppose suppose in this case that about eighty percent of the big asian had been completed no judgment yet and suppose assume that it patrick prevailed he would be entitled to costs could the case be dismissed so that he could no longer get those calls if there is no if it depends on what basis that congress is under their status under under of congress eight under way both a and b have the stature of congress is taking away jurisdiction then no i don't think the court would have the authority to order cost and he also wouldn't be a prevailing party if no judgement i must say that i'm assuming that he would have been the prevailing party there was a substantial chance of it and he would have been entitle to court but even though  percent of the course have been expended he the congress could suddenly say he can't get them the rule that this court has laid out is that once a final judgment has been entered that congress can't undo that and so i think any time up to i mean the courts cases have said again and again that one other final point i'd like to make the petitioner argues that by enacting section two be that congress is taking away the court's ability to interpret the law but when it's a jurisdictional statute that congress isn't acting in a jurisdiction stripping the statute there's not going to be much left for the court to do there's cases from this court that talk about whether there is something left for the court to do and whether that's enough to give the court a role and exercising its judicial r those cases are all trying to decide whether congress has changed the law such that the case is taken outside the scope of kline when you have a statute like this one that takes away subject matter jurisdiction of the federal courts and gets a category of cases off of the judicial agenda the court just has to determine whether this case falls within that category and that it should dismiss if there are no further questions we ask that the court affirm thank you  other side has offered in the federal court scholars amicus brief supporting the other side in this is that page fifteen of that amicus brief it says and this is relying on professor hart it says it is one thing to exclude completely the federal courts from  adjudication it is quite another to vest the federal courts with jurisdiction to juda kate but simultaneously restrict the power of those courts to perform the adjudicatory function in the manner they deem appropriate now the scholars then explain why that first category which this case clearly falls within when you're taking federal courts out of the business entirely raises no separation of powers problems they say quote by wholly excluding the federal court congress loses its ability to draw upon the integrity possessed by the article three judiciary in the public's eyes and so we think that gets to the core separation of powers concerns that are underlying the lines that this court has drawn it avoids any puppet tiering concern that congress is using the article three the judicial and perimeter to give merits judgment it avoids any public misperception concern that this is an article three resolution on the merits of the controversy is a misunderstanding as to show how that helps you i mean doesn't this just exclude the power of the federal courts yes and so that that's the permissible side of the line that the professors lay out they say if you are excluding completely the federal courts from adjudication that does not rely separation of powers problem they rely on professor hart's dialectic for that proposition they say the harder case on it are like oh i'm sorry can i ask you ms o'connell said when you were looking at that if you had a piece of legislation that smith loses that that would be unconstitutional right and she has to say that because nine of us said it yes so then the question is why is it different sure if congress instead says smith there shall be no jurisdiction and smith loses why is that different so your honor if in fact what they're doing is taking away jurisdiction they just say there is don't so in your hypothetical air go smith loser well the reason why we think that statute is different is because of the first part of it it's saying there is no jurisdiction so when it says smith loses it's not in the same way that it was in the hypothetical in bank m where all nine justices said that that would be problematic and three reasons why it's different first in the bank markazi hypothetical of smith wins in a civil suit between smith and jones that is a merits a judgment that the court had in mind right your honor but the result that you're getting is different than in smith v when smith i don't think he meant much cares why would smith care well your honor in a work ozzie smith was the plaintiffs he cares a lot because if he wins he gets an a you're telling the court you have to do you take this stamp and you stamp dismissed on it and it doesn't say dismissed for want of jurisdiction i suppose would have to figure out what the collateral consequences are since the statute doesn't say well you are drag the court into doing something the court doesn't want to do you're making them dismiss a case that's pending before them well your honor it we're assuming if we're assuming this is a jurisdiction stripping statute that is it is withdrawing jurisdiction then the only thing the court can do is court when congress strips your restriction to achieve an otherwise unconstitutional result that's perfectly fine well your honor i think that's a very difficult question well your honor i think that question implicates different interests it's not a separation of powers problem i don't think for congress to say a certain set of cases can't be within the federal courts if they're talking about equal protection cases and singling those out that runs afoul of the i understand your answer to the separation of powers question of the say if the claim is separation of powers th there is new jersey yes you're out of there i grant you we are not arguing that congress can take away the court's jurisdiction to adjudicate whether there is a separation of powers problem itself the constitutional violet self and that's why we're here on here we're not arguing that congress has done or could could do that it can't prevent the court from judah kading whether the statute as passed is constitutional but that's not what's going on here we're having a full airing of the claim the question is can they withdraw jurisdiction and if in fact in listing the courts as you say in that limited manner violate separation of powers well that's true in the submittal withdrawal of diction case in mccardell and hundred fifty years of cases after that in fact in it was just a question of suit when it passed that statute and the court expressly addressed that argument and said no we're not going to look behind congress's act it describes a category of suit and we're not going to ask whether congress had some illicit motive of targeting that's my first response just going through the second response is if in fact there is a claim that there is no other form to bring this case then maybe there is as this court said in bangor kazi there are other constitutional limitations maybe that's a due process problem in fact petitioner raised the due process claim in the lower courts and in a circuit titian this are denied cert on the due process claim so that is odd of the case we're strictly on separation of powers grounds and there's no separation of powers problem in this court withdrawing jurisdiction discrimination because it does it has a lot of employment discrimination suits filed against it and so the c e o of this big corporation goes to congress and says these suits are getting to be a real hassle and so i would like a piece of legislation and congress good enough and it says there shall be no jurisdiction over any employment discrimination suits filed against that corporation all right and and and and and in so doing it knocks out all these employment litigation all these employment discrimination suits that have been filed against that corporation is that constitutional it may be unconstitutional but not for failure of separation of powers not a separation of powers violation maybe that is the type of class of one problem that this court noted in the court's opinion and being markazi in footnote twenty seven it said look if you're singling out a particular litigant for special disfavored or favorite treatment that's the class maybe and that's a class of one claim  separate us david patrick suit different case well your honor if congress had singled out just mr patrick suit in the text of the statute maybe they could have brought that sort of claim i thought still thing based on this court's decision and bank m that talked about congress is free to legislate with protect in a particular manner even with respect to particular cases it's probably ok but it would raise at least a harder question but make no mistake the statute here is about a class of cases now i will grant you it is a relatively narrow class of cases suits the that relating to the bradley property and as it turned out i don't know why the hypothetical justice kagan just put doesn't  severely compromise the integrity of the courts the courts are hearing cases against one class or against a large class of defendants but not another class in this it seems to me  severely you can run the question the integrity of the courts and that's a separation of powers problem well your honor i agree with you everything up until that last part i agree if the court was drawing lines that you could only sue these type of defendants and not other types of you can take an extra minute because we're going to give your friend some rebuttal time sure your honor i guess what i was starting to finish up on was on the on the class of claims it may be a narrow category but just because it turned out that the only suit happened to be patchy it would be an odd constitutional rule if on the day before they if they passed the statute on the day before patrick suit it's fine on the day after patrick suit it's not fine and then if three other people happen to file suit suddenly it's fine again that that is not a rights word that does not strike us as a sensible constitutional rule instead you should look at the words that congress enacted which was trying to insulate a category of cases from from from any federal court exercising jurisdiction that's precisely what congress has done for over one hundred fifty years dating back to mcardle and in a line of cases since then if there are no further questions thank you counsel and i three minutes mi justice a few quick points i'll try and run through them quickly justice kennedy i completely agree with you that there is a separation of powers problem posed by the circumstance the hypotheticals that were posed we shouldn't lose sight of the fact that separation of powers were designed substantial part to protect individual rights and to protect an independent judiciary and what we would have here is if you affirm and uphold the gun lake act you will have judges looking over their shoulders wondering if they're going to be next in a case like this court was in patrick one where congress says we don't like the results we're going to take the case away from the courts we can dress it up using the language of jurisdiction but it's still taking the case away from the courts and directing the outcome and on the point the distinction that the counsel for the respondents were trying to drive home that somehow a direction to dismiss into b is different because it's not merits i would refer to the court to unanimous decision from last year c r s t v says ito see where the court found that the party that was not prevailing  that that did not win on the merits in the e e o c case was nevertheless the prevailing party of the court and the unanimous court observed the defendant however has fulfilled its primary objective whenever plaintiffs challenge is rebuffed irrespective of the precise reason as anyone who has ever been a plaintiff or represented a plaintiff knows when the plaintiff's case is dismissed the plaintiff has lost and the defendant has won it could have different collateral consequences raised to the cause and so on but fundamentally when the plaintiff gets kicked out of court they've lost mr patrick have that result from to be with respect to the relationship between two and two b two a does one of two things here it's either meaningless because all the work is done by to be if the suit relates to see the bradley property it shall be dismissed or as the house of representatives argued in pages three and twenty of its brief what to a to b does is it implements to a this was an extraordinary assertion by the house of representatives which came in filed an amicable brief and they said what they were really telling you is that what the congress didn't to be was it decided what to a means and then took the case out of court based on its own understanding while depriving this court or any other court of the opportunity to say where to amiens response federal respondents said they didn't know quite what some of the provisions in the gun lake act means except they do know that it prevents mr patrick's case from going forward this seems to me that they're uncertain about the meaning except when it comes to its application to mr patrick only highlights the fact that congress was trying to direct the outcome in mr patrick's case with respect to the hypotheticals that were posed to mr shah by justice kagan and kennedy this case is no different i think than the hypotheticals you were posing this is substantially like smith wins you can play around with the words you can say that we want smith to win therefore there's no jurisdiction i don't think anyone here believes that congress should be able to do that so this is effectively the same thing and finally we just discourse which with respect to the gonzales case that you were discussing with counsel for the federal respondents in that case both of the parties acknowledged that there was no