MESOP : Iran & the U.S. Constitution – A victory for terror victims—and the separation of powers.

EAST KURDISTAN (IRAN) – April 20, 2016  p.m. ET – WALL STREET JOURNAL – The Supreme Court isn’t always the “least dangerous” branch that Alexander Hamiltonenvisioned. But a 6-2 majority did show self-control on Wednesday in a case involving terror and the Constitution’s separation of powers.Since 1976, Congress has waived sovereign immunity to allow victims of terrorism to sue foreign governments, but such judgments are naturally difficult for U.S. courts to enforce in practice. The courts have ruled for more than 1,000 casualties or family members of Americans killed in attacks sponsored by Iran, and for years they attempted to collect damages by freezing $1.75 billion in bonds held in New York by Bank Markazi, the Iranian central bank.

The bank challenged the U.S. statutory definition of ownership, claiming the bonds were “of” the New York bank, not Iran or Markazi. So in 2012 Congress passed, and President Obama signed, a law that more specifically designates the types of assets that can be frozen to compensate terror victims, which included the ones Markazi tried to shield.

Bank Markazi v. Peterson asked whether this law is an unconstitutional intrusion on the independent power of the judiciary to make factual findings and decide individual cases. In other words, did Congress steal powers that Article III vests in the judiciary alone and require the courts to reach its favored result?

The law explicitly disposed of legal defenses that Markazi used to try to shelter its bonds, but that doesn’t guarantee any legal outcome. The Iranians have creative legal imaginations, and they must merely devise some other legal argument (as they probably will).

“A statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts,” writes Justice Ruth Bader Ginsburg for the majority. “Applying laws implementing Congress’s policy judgments, with fidelity to those judgments, is commonplace for the judiciary.”

Yet this offended Chief Justice John Roberts, joined in his dissent by liberal Justice Sonia Sotomayor. He accuses Congress of “commandeering the courts to make a political judgment look like a judicial one” and claims the separation of judicial and legislative powers now “is but a constitutional Maginot Line.” He warns that, “Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the winners and losers in particular pending cases.”

He’s wrong on the merits, in particular on core diplomatic powers. Even if Congress had dictated a legal result (it did not), the executive and Congress control the disposition of foreign property in the U.S.—as the Court held in a 1981 decision over the asset freeze during the Iranian hostage crisis. Articles I and II are supposed to be supreme on foreign policy, but under the Chief’s logic they’re suspended if they interfere with judicial review.

The Chief’s dirge would also be more credible if he more vigorously defended constitutional prerogatives that aren’t his own. He twice rewrote the Affordable Care Act to save the law, in 2012 and 2015, even though the abuses that he protected did far more violence to the separation of powers than anything in Markazi. Nor do the liberals in the majority seem to mind when the federal government infringes on the states, as in the immigration case this week.

Chief Justice Roberts often makes exceptions to his principles to protect the allegedly sanctified station of judges. His colleagues deserve credit for recognizing a more modest role for the judiciary.