Mary Bartlett, on Behalf of Josephine Neuman v. Otis R. Bowen, Secretary, Department of Health and Human Services

816 F.2d 695, 259 U.S. App. D.C. 391

Opinions

HARRY T. EDWARDS, Circuit Judge, and J. SKELLY WRIGHT, Senior Circuit Judge:

Appellant Mary Bartlett, plaintiff below, brought suit in the District Court on behalf of her sister, the deceased Josephine Neuman. She challenged the constitutionality of Part A of the Medicare Act on the ground that its partial bar to payment of benefits burdened the free exercise of her sister’s Christian Science faith. The District Court dismissed the complaint for lack of subject matter jurisdiction because the claim failed to meet the $1,000 amount in controversy required by the Medicare Act for judicial review of benefit decisions. On appeal, appellant argues that the jurisdictional provisions of the Medicare Act do not preclude judicial review of her constitutional claim. In the alternative, she maintains that these provisions deny her due process and equal protection of the law if they do bar review.

Upon careful review of the Medicare Act and its legislative history, and pursuant to the guidance given by the Supreme Court in Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), we find that Congress did not intend to bar judicial review of constitutional challenges to the underlying Act. Because we find that Congress did not intend the provisions to preclude review of appellant’s claim, we normally should have no need to reach her constitutional arguments. However, because the dissenting opinion has suggested that Congress may foreclose all judicial review of the constitutionality of a federal statute, we have addressed this issue. We believe that there would be a clear violation of due process if Congress did in fact preclude any opportunity for an aggrieved claimant to obtain judicial review of one of its enactments.

I. Background

Josephine Neuman, a Christian Science practitioner, suffered a terminal illness and required skilled nursing care. In February, 1976, she entered Lynn House of the Potomac, a Christian Science facility, where she received such care. In May, 1976, during the same spell of illness, Neuman left Lynn House and entered the Washington Home for Incurables, a non-Christian Science facility, where she remained, except for a week’s treatment at Georgetown University Hospital, until her death in July, 1978.

Before she died, Neuman claimed and received $377 in Medicare benefits for the post-hospital extended care provided by Lynn House under Part A of the Medicare Act. See 42 U.S.C. § 1395x(y)(l) (1982). After Neuman’s death, Mary Bartlett, executrix of Neuman’s estate, filed a Medicare claim of $286 for the post-hospital extended care Neuman had received at the Washington Home. The Social Security Administration denied that claim initially and upon reconsideration relying on 42 U.S.C. § 1395x(y)(2)(B) (1982),¹ which bars payment of Part A benefits for extended care in a skilled nursing facility unaffiliated with Christian Science to anyone who has, during the same spell of illness, already received such benefits for extended care in a Christian Science skilled nursing facility. An administrative law judge (“ALJ”) upheld the denial on appeal, and the Appeals Council of the Social Security Administration adopted the AU’s decision as the final decision of the Secretary of Health and Human Services (the “Secretary”).

Bartlett does not dispute the Secretary’s reading of the Medicare Act’s provision. Her claim is that the Medicare Act’s bar to payment penalizes Neuman’s estate solely on account of Neuman’s Christian Science faith in contravention of the free exercise clause of the First Amendment. The then-Secretary recognized that she had no authority to rule on constitutional challenges to the Act,² and thus she denied Bartlett’s claim without addressing the merits of her constitutional challenge.

Having exhausted her administrative remedies, Bartlett brought this action in the United States District Court for the District of Columbia in February, 1982. She reasserts her claim that the Christian Science provisions of the Medicare Act burden Neuman’s right to free exercise of religion under the First Amendment and deny her equal protection of the law under the Fifth Amendment. Bartlett further contends that the provision defining “spell of illness”³ also violates Neuman’s right to equal protection and due process under the Fifth Amendment.

The Secretary moved to dismiss Bartlett’s action for lack of subject matter jurisdiction based on two jurisdictional provisions of the Medicare Act, 42 U.S.C. §§ 405(h)⁴ and 1395ff(b)(2) (1982).⁵ Section 405(h), incorporated from the Social Security Act into the Medicare Act by 42 U.S.C. § 1395Ü (1982), denies federal question and mandamus jurisdiction over any claim “arising under” the Medicare Act. Section 1395ff(b)(2) bars “judicial review” of any “determination” of “the amount of benefits under part A” of the Medicare Act that has become a “final decision” of the Secretary, if the “amount in controversy” is less than $1,000. The District Court initially denied the Secretary’s motion because “[t]he legislative history [of § 1395ff] is devoid of ‘clear and convincing’ evidence of a congressional purpose to preclude judicial review of substantial constitutional claims,” and noted that “if plaintiff were precluded from all judicial review of her claim in this case, the most serious constitutional questions would be present.”⁶ The court held in the alternative that it had independent federal question jurisdiction over Bartlett’s claim, notwithstanding § 405(h).⁷ After Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984), was decided, however, the Secretary renewed the motion to dismiss and the court granted it, finding the Supreme Court’s opinion in that case to be conclusive on the jurisdictional issues.⁸ On appeal, Bartlett claims that §§ 405(h) and 1395ff(b)(2) do not preclude judicial review of her claim and that if they do, they violate her rights to equal protection and due process of law.

II. Congress’ Intent in §§ 405(h) and 1395ff(b)(2)

We begin with the general “presumption that Congress intends judicial review of administrative action.”⁹ It is axiomatic that this presumption can be overcome only by “clear and convincing evidence” that Congress intended to restrict access to judicial review.¹⁰ Thus, the party seeking to read a legislative scheme to preclude review bears the burden of demonstrating Congress’ intent to do so.¹¹ This showing must be in accord not only with the words of the statute, but with its legislative history as well.¹²

Courts have applied this “clear and convincing” standard in a particularly rigorous fashion when constitutional rights form the basis of the action over which judicial review is sought. As this court has explained:

When [a] plaintiff seeks to invoke the aid of the judicial branch on constitutional grounds, the Supreme Court and this court have both indicated that only the clearest evocation of congressional intent to proscribe judicial review of constitutional claims will suffice to overcome the presumption that the Congress would not wish to court the constitutional dangers inherent in denying a forum in which to argue that government action has injured interests that are protected by the Constitution.¹³

Indeed, it has become something of a time-honored tradition for the Supreme Court and lower federal courts to find that Congress did not intend to preclude altogether judicial review of constitutional claims in light of the serious due process concerns that such preclusion would raise.¹⁴ These cases recognize and seek to accommodate the venerable line of Supreme Court cases that casts doubt on the constitutionality of congressional preclusion of judicial review of constitutional claims.¹⁵ This foreboding line of Supreme Court cases and the ominous warnings of scholarly commentators have moved modern courts to apply the “clear and convincing” standard to congressional enactments in part to avoid the constitutional morass, as we do here.

Applying this demanding standard with a careful eye on potential constitutional infirmity, we nonetheless find that Congress did intend to preclude independent federal jurisdiction over Bartlett’s claim by enacting 42 U.S.C. § 405(h) and incorporating it into the Medicare Act in § 1395Ü. Section 405(h) proscribes independent federal question or mandamus jurisdiction for any action “to recover on any claim arising under [the Medicare Act].” The Supreme Court’s decisions in Salfi and Ringer clearly establish that a challenge to the constitutionality of the Act is a claim that “arises under” the Act for the purposes of § 405(h). As the Court explained in Salfi:

It would, of course, be fruitless to contend that appellees’ claim is one which does not arise under the Constitution, since their constitutional arguments are critical to their complaint. But it is just as fruitless to argue that this action does not also arise under the Social Security Act. For not only is it Social Security benefits which appellees seek to recover, but it is the Social Security Act which provides both the standing and the substantive basis for the presentation of their constitutional contentions.¹⁶

The Court reiterated its position in Ringer, unwilling to change its construction of § 405(h) for a litigant who had not exhausted his administrative remedies.¹⁷ These two cases make clear that parties aggrieved under the Act must follow the review procedures set out by the Act.¹⁸

When we turn to the Act’s judicial review provision in § 1395ff, however, we reach a different conclusion regarding congressional intent as to preclusion of judicial review of administrative action. Section 1395ff(b)(l)(C), incorporating by reference section 405(g), provides for judicial review in federal district court of “final decision^]” of the Secretary as to “the amount of benefits under part A [of the Medicare Act],” but subsection (b)(2) excepts cases in which “the amount in controversy is less than $1,000.” When we examine these provisions in light of their legislative purpose, it is simply not clear that Congress meant them to preclude any forum for the litigation of constitutional challenges to the Act itself. A common sense construction of these provisions in light of manifest congressional purpose and lurking constitutional infirmity suggests that the District Court has jurisdiction to hear appellant’s claim.

Congress enacted the administrative exhaustion and dollar amount requirements of § 1395ff, as a unified scheme to protect the federal courts from overload by having all statutory questions decided first by the Secretary and by permitting only those non-trivial statutory decisions to be passed on to the courts. The legislative history of the Act suggests that the scheme as a whole is meant to make the most of the Secretary’s expertise and to preserve the courts from relitigating minor matters.¹⁹

Recognizing this manifest congressional purpose in its examination of the section’s administrative exhaustion requirement, the Supreme Court in Ringer carefully distinguished the case where the only issue at stake is the constitutionality of the underlying Act from cases where the disputed question “is peculiarly within the Secretary’s competence.”²⁰ The Court realized that deferring to the Secretary’s expertise by requiring complete exhaustion of administrative procedures makes no sense when the agency has no authority to rule on the disputed issue. Indeed, even the Secretary has recognized this point in adopting a regulation waiving the statute’s administrative exhaustion requirement when the only factor precluding an award of benefits is a statutory provision that the claimant challenges as unconstitutional.²¹

Similarly, the purpose of the amount in controversy provision, which is parallel to that of the exhaustion provision, would not be furthered by its application to constitutional challenges to the Act. These claims are not the “trivial” or “minor matters” from which Congress sought to protect the courts. They are also not appropriately left to the Secretary’s expertise, as the Secretary has no authority even to entertain them. They must still be funnelled through the administrative process so that the Secretary may address any matters within his expertise, and possibly obviate the need for judicial review of constitutional claims. But, just as the exhaustion requirement has been read flexibly when the constitutionality of the underlying statutory provision is challenged, we should read the amount in controversy requirement in a similar way.

The appellee and the dissent voice the concern that if we read an exception for constitutional claims into the amount in controversy requirement, as we suggest, we will flood the federal courts with exactly the tide of trivial claims that Congress sought to stem.²² In other words, the appellee and the dissent fear that many claimants will invent spurious constitutional challenges to the Secretary’s decision not to grant benefits in cases worth less than $1,000. This concern, of course, is not implicated by the case before us. Here, the claimant has raised a serious challenge to the constitutionality of the Medicare Act on its face.²³ Therefore, we need not decide here whether Congress meant to foreclose review of claims below $1,000 concerning the statute as applied.²⁴

We hold merely that challenges to the constitutionality of the Medicare Act itself may be reviewed in federal court consistent with congressional intent as expressed in § 1395ff. This holding will not afford much opportunity for frivolous claims since aggrieved claimants must find a way to connect their claims for benefits to a constitutional infirmity of the Medicare Act itself. Furthermore, the courts would not be powerless to rid themselves of cases raising unmeritorious claims. Under Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 1378-79, 39 L.Ed.2d 577 (1974), a court can dismiss for lack of subject matter jurisdiction cases raising immaterial, wholly insubstantial or frivolous claims. Further, as the Court noted in Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946), a case that fails to raise substantial claims can be dismissed for failure to state a claim upon which relief may be granted. Thus, many claims can be handled either on the pleadings or by summary judgment.

It is critically important to recall that the Secretary has no authority to rule on a constitutional challenge to the Act that enables him. Therefore, our claimant not only has no judicial forum in which to raise her claim, but has no forum at all. The $1,000 amount in controversy requirement for judicial review was meant to sort out claims so that courts would be the final arbiter in some cases, while the Secretary’s decision would be final in others. It was not intended to deny an arbiter altogether for any class of claims, particularly not constitutional ones. It makes sense as a matter of statutory construction to find that Congress, which was trying to make the most of the Secretary’s expertise, surely did not intend this result.

Our holding is supported by the Supreme Court’s decision in Robison, which held that challenges to the constitutionality of the Veterans’ Administration Act were raviewable despite language of the statute that made “the decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration” unreviewable. The Court found the constitutional claim reviewable because the “decision” at issue was that of Congress in enacting the statute rather than of the Administrator in applying it, and the “question” was under the Constitution rather than a “law administered by the Veterans’ Administration.”²⁵ Without discussing the constitutionality of the no-review clause generally, the Robison Court simply concluded that it could not and was not meant to bar challenges to the constitutionality of the Act itself.²⁶ The Court also noted that such challenges “cannot be expected to burden the courts by their volume, nor do they involve technical considerations of Veterans’ Administration policy.” ²⁷ The instant case is similar to Robison in that it involves a constitutional challenge to the underlying statute in a scheme administering federal benefits. As in Robison, the Government’s construction of the Act would “raise serious constitutional questions;”²⁸ accordingly, we too, have made a searching inquiry into congressional intent.

Not surprisingly, the dissent takes great pains to disparage Robison. It refers to the Supreme Court’s explicit uneasiness about the “serious constitutional questions” raised by the dissent’s proposed statutory construction variously as a “note [ ],” a “remark,” and an “aside.” Yet, the Court’s unequivocal statement of concern in a case dealing with a benefits statute thought to deny an aggrieved claimant any forum for his constitutional challenge could hardly be more apposite. It seems to us hardly “revolutionary,” as the dissent declares, to presume that the Court in Robison meant what it said. Moreover, in attempting to dismiss Robison as somehow anomalous, the dissent ignores clear precedent in this circuit following Robison 29 and pointedly makes no mention of the Supreme Court’s very recent reaffirmation of Robison — using exactly the same language.30

Nor do the decisions in Salfi and Ringer preclude our holding, as the Secretary suggests. Salfi expressly distinguished Robison,31 and Ringer involved neither a challenge to the underlying statute nor a situation in which the possibility of judicial review was entirely precluded for the claimant. And neither decision purported to construe § 1395ff of the Medicare Act. We find Robison to be our most instructive precedent and conclude, as did the Court in Robison, that Congress did not intend to bar judicial review of constitutional challenges to the underlying Act; such claims, whatever their dollar amount, are not minor matters which the Secretary can easily resolve himself.

III. Constitutional Issues

Even if we had found, as the dissent insists, that Congress did intend to preclude judicial review of appellant’s claim, our analysis would not end there, because such a conclusion would raise the “serious constitutional questions” that the Court avoided in Robison. If we were to credit Congress with an intention to foreclose all judicial review under the Medicare Act, the appellant here would have no judicial forum whatsoever (in either a federal or state court) in which to pursue her constitutional claim. Indeed, because the Secretary has no authority to consider constitutional questions, the appellant would have no forum at all for the pursuit of her claims. We would thus be faced with a situation in which Congress has enacted legislation and simultaneously declared that legislation to be immune from any constitutional challenge by the plaintiff.

In our view, a statutory provision precluding all judicial review of constitutional issues removes from the courts an essential judicial function under our implied constitutional mandate of separation of powers, and deprives an individual of an independent forum for the adjudication of a claim of constitutional right. We have little doubt that such a “limitation on the jurisdiction of both state and federal courts to review the constitutionality of federal legislation ... would be [an] unconstitutional” infringement of due process.³²

Because we have found that Congress did not intend to preclude judicial review in the case before us, we should have no occasion to consider whether it would be constitutional for Congress to enact legislation and preclude the judiciary from hearing challenges to the constitutionality of that legislation. Unfortunately, the dissenting opinion has pursued this issue and we feel constrained to respond because of the great significance of the question.

The dissenting opinion, which purports to avoid the “serious constitutional questions” alluded to in Robison, relies on an extraordinary and wholly unprecedented application of the notion of sovereign immunity to uphold the Act’s preclusion of all judicial review. We note, first, that the dissent finds no relevant support for the novel proposition that it advances. “Indeed, a survey of congressional limitations on the jurisdiction of the lower federal courts suggests that the Supreme Court will not uphold a statutory infringement of constitutional rights under the guise of a jurisdictional statute ...;”³³ it is equally clear that the Court would not allow such a result under the guise of sovereign immunity.

Second, we note that, in relying on an unprecedented notion of sovereign immunity, the dissent has effectively decided the precise constitutional issue that it claims to have avoided. To say that Congress may, as it sees fit, insist on immunity as a way to foreclose all judicial review on the constitutionality of a congressional enactment, is to decide that there is no infringement of due process. We absolutely disagree with this contention.

Moreover, we note that the dissent’s hesitancy to address directly the constitutional issue may well stem from a misunderstanding of what that issue is. The dissent characterizes the limits of Congress’ power over federal jurisdiction as a “complex” and “profound” question, citing authorities with a variety of viewpoints. And yet the complexities of the issue arise from the potential problems created if, for example, Congress wished to deny any federal forum for a federal claim, leaving only a state forum. It is on this problem that the dissent’s authorities focus their efforts, asking whether Article III places any limits on Congress’ plenary power over federal jurisdiction. The question we ask is whether due process places any limits on Congress’ power, and we conclude, narrowly and rather uncontroversially, that it does and that these limits are broached when Congress denies any forum — federal, state or agency — for the resolution of a federal constitutional claim.

In his renowned “Dialogue,” which the dissent cites as supporting its argument, the late Professor Henry M. Hart considered the bearing of sovereign immunity and asserted that “no democratic government can be immune to the claims of justice and legal right____And where constitutional rights are at stake the courts are properly astute, in construing statutes, to avoid the conclusion that Congress intended to use the privilege of immunity, or of withdrawing jurisdiction, in order to defeat them.”³⁴ Because we believe that this view is so firmly rooted in our constitutional tradition of separation of powers, we cannot ignore the contrary views advanced in the dissenting opinion.

A. The Due Process Right to Have the Scope of Constitutional Rights Determined By an Independent Judicial Body

In considering the constitutional issue, it is important to recall that, in the entire history of the United States, the Supreme Court has never once held that Congress may foreclose all judicial review of the constitutionality of a congressional enactment. Quite the contrary, on the few occasions when this issue has been considered, courts have declined to find an intention on the part of Congress to preclude all judicial review of constitutional claims. Less than one year ago, the Supreme Court adopted just such an analysis to conclude that Congress did not intend to bar judicial review of the method by which Medicare Part B awards are computed.³⁵ The Court recognized the constitutional dangers it averted by its holding, noting that “[o]ur disposition avoids the ‘serious constitutional question’ that would arise if we construed § 1395Ü to deny a judicial forum for constitutional claims arising under Part B of the Medicare program.”³⁶ The Court went on to endorse Professor Gunther’s unequivocal conclusion that “all agree that Congress cannot bar all remedies for enforcing federal constitutional rights.”³⁷

Under our constitutional scheme, there are admittedly some difficult questions concerning Congress’ Article III power to limit federal court jurisdiction.³⁸ However, most scholars agree that “under the due process clause of the fifth amendment Congress may not exercise Article III power over the jurisdiction of the [federal] courts in order to deprive a party of a right created by the Constitution.”³⁹ Professor Hart, on the other hand, while not disagreeing with this proposition, has suggested that Congress might be free to limit federal court jurisdiction so long as some alternative forum was available:

It’s hard, for me at least, to read into Article III any guarantee to a civil litigant of a hearing in a federal constitutional court (outside the original jurisdiction of the Supreme Court), if Congress chooses to provide some alternative procedure. The alternative procedure may be unconstitutional. But, if so, it seems to me it must be because of some other constitutional provision, such as the due process clause.

On the other hand, if Congress directs an Article III court to decide a case, I can easily read into Article III a limitation on the power of Congress to tell the court how to decide it.⁴⁰

The courts, too, have recognized a principle that the constitutional guarantee of an independent judiciary limits the legislature in the exercise of its power to regulate court jurisdiction. For example, in United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1872), the plaintiff sued in the Court of Claims under a statute allowing the recovery of land lost or abandoned during the Civil War if the claimant could prove that he had not given aid to the rebellion. Klein won his case in the Court of Claims on a showing that he had received a presidential pardon. However, while appeal to the Supreme Court was pending, Congress passed a law providing, in part, that, on proof of pardon, a court should summarily dismiss a claim under the statute for want of jurisdiction. The Supreme Court held the statute unconstitutional. Chief Justice Chase’s opinion in Klein observes that, in its attempt to limit the jurisdiction of the Court, “[w]e must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power.”⁴¹

As one commentator has noted, “It was clear to the Klein Court that Congress could not manipulate jurisdiction to secure unconstitutional ends.”⁴² Klein is particularly relevant to our inquiry because it arguably involved the question of whether the government had waived its immunity to suit. Nonetheless the Court held that Congress could not unconstitutionally limit jurisdiction.

Another example of constitutional limitations on congressional power over the jurisdiction of the courts is Battaglia v. General Motors, 169 F.2d 254 (2d Cir.1948). In the mid-1940s, the Supreme Court ruled that certain incidental activities by workers were compensable under the Fair Labor Standards Act of 1938. Congress thereafter passed the Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262 (1982), amending the statute to make the disputed work noncompensable and withdrawing the jurisdiction of the courts to hear cases under the old statute. The court in Battaglia held that the statutory amendment did not constitute an unconstitutional taking of property because the claimants had no vested rights to overtime pay under the old statute. However, what is noteworthy about Battaglia is that, “[b]y considering and rejecting [the plaintiffs’] constitutional claim, [the] court of appeals explicitly recognized that congressional power over the jurisdiction of the courts is limited by the due process clause.”⁴³ The court thus considered both the constitutionality of the jurisdictional provision and the merits of plaintiffs’ underlying claim. As the court noted, “regardless of whether [the deprivation of jurisdiction] had an independent end in itself, if one of its effects would be to deprive the appellant of property without due process or just compensation, it would be invalid.”⁴⁴

The foregoing cases and authorities suggest that, “to the extent that the provisions of Article III are inconsistent with the due process clause of the fifth amendment, those provisions of Article III must be considered modified by the amendment.”⁴⁵ This proposition is admittedly controversial insofar as it suggests that there must be some federal judicial forum for the enforcement of federal constitutional rights.⁴⁶ However, “[s]ince restrictions on federal courts ordinarily leave state courts as available forums, curtailments of federal jurisdiction do not typically require confrontation of the difficult and unsettled problem of access to some judicial forum.” ⁴⁷ In other words, courts and legal scholars routinely assume that there is a due process right to have the scope of constitutional rights determined by some independent judicial body — and the Supreme Court has never held or hinted otherwise. On the contrary, although it is undisputed that Congress has some leeway to affect the jurisdiction of the lower federal courts,⁴⁸ Congress may not deny to a person attacking a statute “the independent judgment of a court on the ultimate question of constitutionality.” St. Joseph Stock Yards Co. v. United States, 298 U.S. at 84, 56 S.Ct. at 740 (Brandeis, J., concurring).

Although there is no definitive answer to the question whether there are constitutional restraints when Congress seeks to limit the jurisdiction of all federal courts, we need not address that question here. This arguably hard question is not posed in a case such as this one where Congress has effectively foreclosed all judicial review of Bartlett’s constitutional claim under the Medicare Act. We think it obvious that a statute that would have the effect of precluding any sort of review in an independent judicial forum ignores the warnings in Robison and fails the test in Battaglia. We also believe that such a congressional enactment would be flatly inconsistent with the doctrine of separation of powers implicit in our constitutional scheme.

Since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), the Supreme Court has interpreted the Constitution to give to the judiciary an important, albeit limited, role in the structure of the government. First, federal courts fulfill their role only by adjudicating cases or controversies before them.⁴⁹ Second, when faced with a proper case or controversy, courts, both state and federal, must apply all applicable laws in rendering their decisions.⁵⁰ Third, courts have a duty to uphold the Constitution.⁵¹ Fourth, a law contrary to the Constitution may not be enforced.⁵² Last, a final judgment by a court is binding and must be enforced.⁵³ So, once a case or controversy reaches the courts, the courts, in essence, become the final arbiters as to the constitutionality of government actions.⁵⁴

The delicate balance implicit in the doctrine of separation of powers would be destroyed if Congress were allowed not only to legislate, but also to judge the constitutionality of its own actions. We have no doubt that Congress may and, indeed, should, consider the constitutionality of any legislation that it passes. Moreover, we recognize that the courts may occasionally defer to the judgment of Congress with respect to the constitutionality of certain legislation. Further, the courts arguably may, in their discretion, elect to avoid certain “political” questions that appear to be better left for resolution in the legislative or executive branch. However, it is quite another matter to suggest that Congress may, as it sees fit, act to bar all courts from considering the constitutionality of a legislative act. If Congress attempts to go this far, it has “passed the limit which separates the legislative from the judicial power.”⁵⁵ The Supreme Court has never upheld such an enactment, and we will not do so here.

It should be emphasized that this case involves a statute enacted by Congress that appellant claims infringes her right to the free exercise of religion. Congress has given appellant a right to benefits that seemingly varies depending upon whether or not she uses a Christian Science facility. This is a potentially serious infringement of appellant’s free exercise of her religion. Whether Congress can impose such a statutory restriction is a question for the judiciary. It makes absolutely no sense to us, under any meaningful system of separation of powers, to allow the legislative branch to pass such a law and then avoid judicial review of a broad category of constitutional challenges by individuals injured by the law. We suspect that the dissent recognizes the folly of such a view; this may explain why the dissenting opinion seeks to rest not on a direct analysis of the constitutionality of the statute but on an absolutely unprecedented use of sovereign immunity.

B. Sovereign Immunity

In order to avoid the obvious constitutional difficulties that might be posed with a finding that Congress has foreclosed all judicial review, the dissent seeks solace in a novel concept of sovereign immunity. It would be pointless for us to attempt to parse the limits of the dissent’s thesis — all that need be understood is that, insofar as the dissent’s thesis purports to claim that Congress may foreclose all judicial review of the constitutionality of a legislative enactment, it finds no support in the case law of the Supreme Court.

The dissenting opinion, somewhat curiously, seeks to rely on Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934), to extract a theory of preclusion based on sovereign immunity. But a careful reading of Lynch makes it plain that Justice Brandéis not only did not rely on a finding of sovereign immunity but, on the contrary, engaged in artful interpretation of legislative intent to avoid a conclusion that Congress had invoked immunity to shield its actions from judicial review. He found that “in repealing ‘all laws granting or pertaining to yearly renewable term insurance’ Congress aimed at the right [and not] at the remedy,” 292 U.S. at 583, 54 S.Ct. at 845, and so a suit challenging the constitutionality of the enactment was not barred by sovereign immunity. Justice Brandéis appeared to have been concerned with precisely the problem we face here and that the Court confronted in Robison:

There is a suggestion that although, in repealing all laws “granting or pertaining to yearly renewable term insurance,” Congress intended to take away the contractual right, it also intended to take away the remedy; that since it had power to take away the remedy, the statute should be given effect to that extent, even if void insofar as it purported to take away the contractual right. The suggestion is at war with settled rules of construction. It is true that a statute bad in part is not necessarily void in its entirety. A provision within the legislative power may be allowed to stand if it is separable from the bad. But no provision however unobjectionable in itself, can stand unless it appears both that, standing alone, the provision can be given legal effect and that the legislature intended the unobjectionable provision to stand in case other provisions held bad should fall. Dorchy v. Kansas, 264 U.S. 286, 288, 290 [44 S.Ct. 323, 324, 68 L.Ed. 686]. Here, both those essentials are absent. There is no separate provision in § 17 dealing with the remedy; and it does not appear that Congress wished to deny the remedy if the repeal of the contractual right was held void under the Fifth Amendment.

War Risk Insurance and the war gratuities were enjoyed, in the main, by the same classes of persons; and were administered by the same governmental agency. In respect of both, Congress had theretofore expressed its benevolent purpose perhaps more generously than would have been warranted in 1933 by the financial condition of the Nation. When it became advisable to reduce the Nation’s existing expenditures, the two classes of benovolences were associated in the minds of the legislators; and it was natural that they should have wished to subject both to the same treatment. But it is not to be assumed that Congress would have resorted to the device of withdrawing the legal remedy from beneficiaries of outstanding yearly renewable term policies if it had realized that these had contractual rights. It is, at least, as probable that Congress overlooked the fundamental difference in legal incidents between the two classes of benevolences dealt with in § 17 as that it wished to evade payment of the Nation’s legal obligations.

Id. at 586-87, 54 S.Ct. at 846-47. Thus, when the smoke clears in Lynch, the sovereign immunity claim fails because to hold otherwise would be to create the possibility that Congress could act unconstitutionally and then attempt to shield its action from review by virtue of sovereign immunity.

Similarly, in Robison, the Court used the “ ‘cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the [constitutional] questions] may be avoided.’ ” 415 U.S. at 367, 94 S.Ct. at 1165, quoting United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971). Certainly, absent rather explicit congressional intent to use sovereign immunity in this case as a shield to bar judicial review, we ought not conclude that Congress has attempted to rely on sovereign immunity. As in Lynch, “[i]t is, at least, as probable that Congress overlooked [the possibility of claims under $1000 raising constitutional issues] as that it wished to evade [review].” 292 U.S. at 587, 54 S.Ct. at 847.

The dissent also tries in vain to rely on Maricopa County v. Valley National Bank of Phoenix, 318 U.S. 357, 63 S.Ct. 587, 87 L.Ed. 834 (1943). Maricopa County involved the power of Congress to withdraw the state’s power to tax federally chartered banks. In response to the claim that this violated the Fifth Amendment, the Court merely answered “no.” It decided the constitutional issue on the merits and any references to the sovereign immunity issue are plainly dicta.

Thus, neither Lynch nor Maricopa County can be read to support a view that Congress may preclude all judicial review of claims relating to the constitutionality of a federal statute. The relevant point is that, in Lynch, the Court engaged in creative statutory interpretation to avoid relying on sovereign immunity. In Maricopa County, the Court again did not rely on sovereign immunity when it decided the case on the merits. In fact, the Supreme Court has rarely adverted to sovereign immunity in the past few decades, and the dissent’s sources of authority tend to be both old and infrequently cited. Instead, the Court has taken pains to construe Congress’ intent to avoid the result endorsed by the dissent. The Court has, in fact, done precisely what Professor Hart suggested courts should do: “[W]here constitutional rights are at stake the courts are properly astute, in construing statutes, to avoid the conclusion that Congress intended to use the privilege of immunity, or of withdrawing jurisdiction, in order to defeat them.”⁵⁶ Indeed, in support of this proposition, Professor Hart cites the Lynch case,⁵⁷ i.e., the same case on which the dissent seeks to rely to support its unprecedented application of sovereign immunity. The dissent’s view obviously rejects the “properly astute” analysis of Professor Hart, but it is virtually alone in its maverick assertions regarding sovereign immunity.

Nor are the other cases cited by the dissent persuasive. The dissent cites a string of authorities unrelated to each other or to the instant case in an effort to demonstrate that the bar of sovereign immunity is not automatically defeated by the assertion of a constitutional claim. The dissent claims that the majority opinion requires the doctrine of sovereign immunity to disappear in all litigation against the Government where a constitutional challenge is made. But the dissent has set up a straw man here, as that is not our contention. Ours is the much narrower claim that sovereign immunity may not be invoked when its effect is to preclude any judicial review of a challenge to the constitutionality of congressional legislation.

The dissent later focuses on this narrower claim and argues that the Supreme Court has upheld such an invocation of the doctrine. The only case the dissent could find to support its assertion is Morrison v. Work, 266 U.S. 481, 45 S.Ct. 149, 69 L.Ed. 394 (1925).⁵⁸ Not only is the case over sixty years old and dispositive of Indian land claims over which Congress has special plenary authority, but its holding has been called into question by later developments in the doctrine of sovereign immunity. Morrison’s claim that federal officials were violating his rights to Indian land by acting under unconstitutional federal statutes was held barred by sovereign immunity because the suit, although against government officials, was, in effect, a suit against the United States involving the disposition of United States land. The holding was later described by the Supreme Court as part of a line of “conflicting precedents” resolved by the Court’s decision in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).⁵⁹ In Larson, the Court approved, albeit in limited fashion, the competing line of precedent from United States v. Lee, 106 U.S. (16 Otto) 196, 27 L.Ed. 171 (1882), recognizing a “constitutional exception to the doctrine of sovereign immunity.”⁶⁰ This exception defeats the bar when there is a claim that federal officials have acted in contravention of the Constitution. In such cases, the claim is held to run against the officials rather than against the United States.⁶¹ The Court in Malone explained that the Larson and Lee decisions were guided by the concern that there be some remedy for the vindication of the plaintiffs’ constitutional claims.⁶² It distinguished the situation before it in Malone from Larson and Lee, noting that the plaintiffs in Malone always had a forum (the Court of Claims) in which to press their claims.⁶³ Thus, the dissent’s invocation of the cursory discussion of sovereign immunity in Morrison, without reference to the implications of sixty years of later developments, is of dubious precedential value. The dissent has found no other cases in which an act of Congress was purportedly immunized from judicial review on the basis of sovereign immunity.

The dissent attempts to support its position by analogy to state sovereign immunity doctrine. In doing so, it ignores the fact that the Eleventh Amendment deals only with federal jurisdiction to hear suits against the states, not with the states’ immunity from suit in any forum. In many Eleventh Amendment cases, the state courts are available to hear the claims raised; only the availability of a federal forum is at issue. Moreover, the dissent conveniently ignores the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which mitigated the potential harshness of the Eleventh Amendment bar by permitting state officials to be sued for injunctive relief on federal claims in federal court. Thus, Ex Parte Young prevents the Eleventh Amendment from denying any forum for constitutional claims. Prospective relief is always available in federal court. Indeed, the doctrine of Ex Parte Young has been invoked to protect plaintiffs’ rights to receive public benefits.⁶⁴ It is plain that the Eleventh Amendment offers little analogous support for the dissent’s contentions.

Finally, the dissent cites several cases holding suits for damages against the United States for the unconstitutional actions of executive officials barred by sovereign immunity. These cases offer no support for the contention that sovereign immunity likewise immunizes the legislative branch from judicial review. While we concede that the sovereign may not be sued for damages without its consent, that immunity does not also entail that courts may not review legislative enactments without Congress’ consent. Judicial review has been with us since Marburg v. Madison, and no one has ever before suggested that it is discretionary on Congress’ part. The dissent has conflated the sovereign’s immunity from suit for damages with its purported ability to immunize its enactments from judicial review. The only people who have standing to challenge the Medicare provisions at issue in this case are those with claims for benefits. This posture cannot eliminate the availability of judicial review without also violating the claimants’ right to due process of law and raising serious concerns about separation of powers.

This is exactly the point made in Robison, and thus the dissent’s last attempt to support its position also fails. The dissent maintains that even if due process might require a forum for a constitutional claim when the Government is acting coercively, it requires no such forum when the Government has merely denied a claimant benefits. But Robison, in which the Supreme Court expressed its concern about “serious constitutional questions,” was itself a benefits case — a fact that makes hash out of the dissent’s much belabored distinction.

The dissent’s sovereign immunity theory in effect concludes that the doctrine of sovereign immunity trumps every other aspect of the Constitution. According to the dissent, neither the delicate balance of power struck by the framers among the three branches of government nor the constitutional guarantee of due process limits the Government’s assertion of immunity. Such an extreme position simply cannot be maintained. If we follow the reasoning of the dissent to its logical conclusion, Congress would have the power to enact, for example, a welfare law authorizing benefits to be available to white claimants only and to immunize that enactment from judicial scrutiny by including a provision precluding judicial review of benefits claims. We have difficulty understanding how such a law could ever be thought to be beyond judicial scrutiny because of sovereign immunity. To preclude judicial review in such a situation would be just as unconstitutional as the underlying governmental action. Any theory that would allow such a statute to stand untouched by the judicial branch flagrantly ignores the concept of separation of powers and the guarantee of due process. We see no evidence that any court, including the Supreme Court, would subscribe to the dissent’s theory in such a case.

IV. Conclusion

For the reasons noted above, we find that Congress did not intend to preclude judicial review of the claim before us. The decision of the District Court is thus hereby reversed and remanded.

So Ordered.

Footnotes

1

. 42 U.S.C. § 1395x(y) reads as follows:

(y) Post-hospital extended care in Christian Science skilled nursing facilities

(1) The term "skilled nursing facility” also includes a Christian Science sanatorium operated, or listed and certified, by the First Church of Christ, Scientist, Boston, Massachusetts, but only (except for purposes of subsection (a)(2) of this section) with respect to items and services ordinarily furnished by such an institution to inpatients, and payment may be made with respect to services provided by or in such an institution only to such extent and under such conditions, limitations, and requirements (in addition to or in lieu of the conditions, limitations, and requirements otherwise applicable) as may be provided in regulations.

(2) Notwithstanding any other provision of this subchapter, payment under part A may not be made for services furnished an individual in a skilled nursing facility to which paragraph (1) applies unless such individual elects, in accordance with regulations, for a spell of illness to have such services treated as post-hospital extended care services for purposes of such part; and payment under part A may not be made for post-hospital extended care services—

(B) furnished an individual during such spell of illness in a skilled nursing facility to which paragraph (1) does not apply after such services have been furnished to him during such spell in a skilled nursing facility to which such paragraph applies.

2

. See Decision of Administrative Law Judge (June 26, 1981) at 5, reprinted in Joint Appendix ("J.A.”) 15; see also Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975); Johnson v. Robison, 415 U.S. 361, 368, 94 S.Ct. 1160, 1166, 39 L.Ed.2d 389 (1974).

3

. 42 U.S.C. § 1395x(a) (1982).

4

. 42 U.S.C. § 405(h) provides:

(h) Finality of Secretary’s decision

The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under sections 1331 or 1346 of title 28 to recover on any claim arising under this subchapter.

5

. 42 U.S.C. § 1395ff(b) provides:

(b) Appeal by individuals

(1) Any individual dissatisfied with any determination under subsection (a) of this section as to—

(C) the amount of benefits under part A (including a determination where such amount is determined to be zero)

shall be entitled to a hearing thereon by the Secretary to the same extent as is provided in section 405(b) of this title and to judicial review of the Secretary’s final decision after such hearing as is provided in section 405(g) of this title.

(2) Notwithstanding the provisions of sub-paragraph (C) of paragraph (1) of this subsection, a hearing shall not be available to an individual by reason of such subparagraph (C) if the amount in controversy is less than $100; nor shall judicial review be available to an individual by reason of such subparagraph (C) if the amount in controversy is less than $1,000.

6

. Bartlett v. Heckler, 576 F.Supp. 830, 833 (D.D.C.1983).

7

. Id. at 834 n. 10.

8

. Bartlett v. Heckler, No. 82-0552 (D.D.C. Dec. 21, 1984), reprinted in J.A. 57.

9

. Bowen v. Michigan Academy of Family Physicians, — U.S. -, 106 S.Ct. 2133, 2135, 90 L.Ed.2d 623 (1986).

10

. See Robison, 415 U.S. at 373-74, 94 S.Ct. at 1168-69; Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967).

11

. See Block v. Community Nutrition Inst., 467 U.S. 340, 351, 104 S.Ct. 2450, 2456, 81 L.Ed.2d 270 (1984) (precluding party must meet standard by showing Congress’ intent to preclude is "fairly discernible’’ in the legislative scheme). The dissent erroneously reverses this burden, concluding that the judicial review provisions at issue constitute a limited waiver of sovereign immunity that must be construed narrowly unless the plaintiff can prove otherwise. The dissent even contends that "Congress need not make explicit an intention to bar constitutional challenges.” There is absolutely no support for this startling conclusion. The Supreme Court has never held that judicial review provisions should be construed as limited waivers of sovereign immunity; the case cited by the dissent deals not with provisions for judicial review, but with a statute of limitations. See Bowen v. City of New York, — U.S. -, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). Indeed, a recent Supreme Court opinion dealing with § 1395ff — the statutory provision at issue in this case and claimed by the dissent to be a limited waiver of sovereign immunity — began its analysis, as we do, with "the strong presumption that Congress intends judicial review of administrative action.” Bowen v. Michigan Academy of Family Physicians, 106 S.Ct. at 2135. Supreme Court precedent could not be clearer that the burden falls on the government to show clearly and convincingly that Congress meant its judicial review provisions to preclude review of administrative action.

12

. See Oestereich v. Selective Serv. Sys., 393 U.S. 233, 238, 89 S.Ct. 414, 417, 21 L.Ed.2d 402 (1968) ("Examples are legion where literalness in statutory language is out of harmony either with constitutional requirements or with an Act taken as an organic whole.” (citations omitted)); Ralpho v. Bell, 569 F.2d 607, 617 (D.C.Cir.1977) (“Recourse to canons of construction, statutory history and common sense is no less necessary when a statute’s terms appear superficially to preclude review than when they are silent on that subject.”)

13

. Ungar v. Smith, 667 F.2d 188, 193 (D.C.Cir.1981).

14

. See, e.g., Bowen v. Michigan Academy of Family Physicians, 106 S.Ct. at 2141 & n. 12; Robison, 415 U.S. at 366, 94 S.Ct. at 1165; Cardenas v. Smith, 733 F.2d 909, 919 (D.C.Cir.1984); Ungar v. Smith, 667 F.2d at 193.

The dissent finds "dispositive" the Supreme Court's recent opinion in Commodity Futures Trading Comm’n v. Schor, — U.S. -, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1985), which has no relevance to the instant case except that it concerns an unrelated situation in which the Court rejected an interpretation of a statute offered to avoid constitutional infirmity. In that case, however, the proposed interpretation was manifestly at war with the general purpose underlying the statute, see id. 106 S.Ct. at 3254, while we reach exactly the opposite conclusion regarding our interpretation of § 1395ff. See infra pp. 700-02.

15

. See Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977); Oestereich, 393 U.S. at 243 n. 6, 89 S.Ct. at 419 n. 6 (Harlan, J., concurring); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84, 56 S.Ct. 720, 740, 80 L.Ed. 1033 (1936) (Brandeis, J., concurring); Crowell v. Benson, 285 U.S. 22, 60, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 330-33, 4 L.Ed. 97 (1816); see also M. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 7-34 (1980) [hereinafter Redish] (maintaining that due process limits Congress’ power to deny a judicial forum for the litigation of constitutional claims); Sager, The Supreme Court, 1980 Term — Foreword: Constitutional Limitations on Congress’ Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv.L.Rev. 17 (1981) (same); Taylor, Limiting Federal Court Jurisdiction: The Unconstitutionality of Current Legislative Proposals, 65 Judicature 199 (1981) (same).

16

. 422 U.S. at 760-61, 95 S.Ct. at 2464.

17

. See 466 U.S. at 619, 104 S.Ct. at 2024.

18

. The dissent unnecessarily goes to great lengths to demonstrate that the quoted language in Salfi requires this result. It is difficult to understand why the dissent bothers with its recitation, considering that we have no problem acknowledging this point. Our disagreement arises not from the construction of § 405(h), but from our conflicting readings of § 1395ff, on which Salfi offers no direction.

19

. See Salfi, 422 U.S. at 765, 95 S.Ct. at 2466 (noting that exhaustion requirements are meant to give the parties and the courts the benefit of the Secretary’s "experience and expertise”); 118 Cong.Rec. 33,992 (1972) (statement of Senator Bennett) (noting that the purpose of the judicial review restrictions was to avoid overloading the courts with "trivial” or "quite minor” matters); 111 Cong.Rec. 15,836 (1965) (statement of Senator Kennedy) (noting that the "only explanation” for the judicial review restrictions is "concern over the number of cases that may pile up in the courts”).

20

. 466 U.S. at 618 n. 11, 104 S.Ct. at 2023 n. 11 (distinguishing Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)).

21

. See 42 C.F.R. §§ 405.718-405.718e (1985); 20 C.F.R. §§ 404.923-404.928 (1986).

22

. See Brief for Appellee at 25.

23

. We make no judgment, however, on the merits of the appellant’s constitutional challenge to the Medicare Act.

24

. Such claims might indeed be easier to manufacture than wholesale challenges to the Act itself. However, that is simply not the case before us, and we need not rule on Congress’ intent or the constitutionality of such a result.

But the logic of the cases casting doubt on the constitutionality of denying a forum for the litigation of constitutional claims would appear to apply with equal force to claims challenging the statute as applied. See Ralpho v. Bell, 569 F.2d at 620 (”[I]f legislation by Congress purporting to prevent judicial review of the constitutionality of its own actions is itself constitu tionally suspect, legislation that frees an administrative agency from judicial scrutiny of its adherence to the dictates of the Constitution must pose grave constitutional questions as well.”).

25

. 415 U.S. at 367, 94 S.Ct. at 1165.

26

. Id. at 373, 94 S.Ct. at 1168.

27

. Id.

28

. See id. at 366, 94 S.Ct. at 1165.

29

. See note 14 supra.

30

. See Bowen v. Michigan Academy of Family Physicians, 106 S.Ct. at 2141 n. 12 (expressing concern about the “serious constitutional question” that might be raised by construing the Social Security Act to deny a judicial forum for constitutional claims arising under Part B of the Medicare program).

31

. See 422 U.S. at 761-62, 95 S.Ct. at 2464-65.

32

. Redish, supra note 15, at 27 (emphasis in original).

33

. J. Nowak, R. Rotunda & J. Young, Constitutional Law 41 (3d ed. 1986) [hereinafter Nowak].

34

. P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler’s the Federal Courts and the Federal System 336 (2d ed. 1973) [hereinafter Hart a Wechsler].

35

. Bowen v. Michigan Academy of Family Physicians, — U.S. -, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986).

36

. Id. 106 S.Ct. at 2141 n. 12 (citing Weinberger v. Salfi, 422 U.S. at 762, 95 S.Ct. at 2465 (citing Johnson v. Robison, 415 U.S. 361, 366-67, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974); Yakus v. United States, 321 U.S. 414, 433-44, 64 S.Ct. 660, 671-77, 88 L.Ed. 834 (1944); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84, 56 S.Ct. 720, 740, 80 L.Ed. 1033 (1936) (Brandéis, J., concurring))).

37

. Id. (quoting Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan.L.Rev. 895, 921 n. 113 (1984)). Other scholars have also agreed with Professor Gunther. See Redish, supra note 15, at 25 (“Courts have long recognized a due process right to have the scope of constitutional rights determined by an independent judicial body." (footnote omitted)); Nowak, supra note 33, at 40-41.

38

. See note 37 supra. See also L.Tribe, American Constitutional Law 33-47 (1978); C. Wright, Law of Federal Courts 32-39 (4th ed. 1983).

39

. See, e.g., Nowak, supra note 33, at 41 (footnote omitted).

40

. Hart & Wechsler, supra note 34, at 337 (emphasis in original).

41

. 80 U.S. (13 Wall.) at 147.

42

. Sager, supra note 15, at 71.

43

. Nowak, supra note 33, at 43.

44

. 169 F.2d at 257 (footnote omitted).

45

. Redish, supra note 15, at 25. As to congressional limits on the jurisdiction of the Supreme Court, Professor Ratner has argued that:

It is reasonable to conclude, therefore, that the [Constitutional] Convention gave Congress authority to specify ... orderly procedures and to modify the jurisdiction from time to time in response to prevailing social and political requirements, within the limits imposed by the Court’s essential constitutional role. It is not reasonable to conclude that the Convention gave Congress the power to destroy that role. Reasonably interpreted the clause means "With such exceptions and under such regulations as Congress may make, not inconsistent with the essential functions of the Supreme Court under this Constitution.”

Ratner, Congressional Power Over the Appellate Jurisdiction of the Supreme Court, 109 U.Pa.L. Rev. 157, 171-72 (1960) (footnote omitted).

46

. See generally Gunther, Congressional Power to Curtail Federal Jurisdiction: An Opinionated Guide to the Ongoing Debate, 26 StanX.Rev. 895 (1984). See also discussion and citation of authorities in W. Lockhart, Y. Kamisar a J. Chofer, Constitutional Law 57-61 (5th ed. 1980).

47

. G. Gunther, Constitutional Law 51 n. 6 (11th ed. 1985) (emphasis in original).

48

. See Sheldon v. Sill, 49 U.S. (8 How.) 440, 12 L.Ed. 1147 (1850).

49

. This embraces the requirement that the court have subject matter jurisdiction, see Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 2 L.Ed. 229 (1804), and that a justiciable case or controversy is presented. See, e.g., Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (standing); Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969) (mootness); Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967) (ripeness); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (political questions).

50

. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803).

51

. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). See also Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 330-33, 4 L.Ed. 97 (1816).

52

. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803).

53

. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958).

54

. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958).

55

. United States v. Klein, 80 U.S. at 147.

56

. Hart & Wechsler, supra note 34, at 336.

57

. Id.

58

. All of the other cases described at great length in the dissenting opinion deal either with state sovereign immunity or executive branch immunity, which we treat in turn below. Indeed, many of the cases cited by the dissent purportedly to show that Congress has denied any forum at all for constitutional claims are flagrantly mischaracterized. For example, the dissent cites Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 66 S.Ct. 219, 90 L.Ed. 140 (1945), but in that case, the plaintiff had a forum — the Tax Court — in which to pursue its constitutional claim. Similarly, the dissent relies on United States v. Mottaz, — U.S. -, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986), in which the plaintiff abo had a judicial forum in which to pursue his constitutional claim, but failed to do so within the statutory limitations period. These misreadings make it misleadingly easy for the dissent to conclude that the Court did not concern itself with the availability of a judicial forum, because in these cases, unlike the instant case, a hearing was clearly available in some court at some time.

59

. See Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962).

60

. Larson, 337 U.S. at 696, 69 S.Ct. at 1464.

61

. Id. at 701-02, 69 S.Ct. at 1467.

62

. See 369 U.S. at 647, 82 S.Ct. at 983.

63

. Id. at 647 n. 8, 82 S.Ct. at 983 n. 8.

64

. See, e.g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (state welfare officials prohibited from denying benefits to otherwise qualified residents who were aliens).