While accepting the view that "broadcast regulations

receive more lenient scrutiny than ones affecting other types of speech," the News America court concluded that application of the law only to Mr. Murdoch's particular case was a device that bore "only the most strained relationship to the purpose hypothesized." Slip op. at 23, 31. The court invalidated that lav on equal protection grounds, but it also observed that such an "exclusive focus on a single party clearly implicates values similar to those behind the constitutional proscription of Bills of Attainder." Id. at 28. This concern has special force in the case of H.R. 3991, which imposes retroactive legislative relief upon alien-owned firms with less extensive rights of participa21/ tion in the political process.

C. H.R. 3991 Interferes with Pending Judicial Proceedings

H.R. 3991 also interferes with the functions of the federal courts in ongoing judicial proceedings. From the very beginning of our republic, it has been clear that "no decision of any court of the United States can, under any circumstances agreeable to the Constitution, be liable to a revision, or even suspension, by the Legislature itself, in whom no judicial power of any kind appears to be vested, but the important one relative

21/ Cf. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); Graham v. Richardson, 403 U.S. 365, 372 (1971); Hampton v. Mow Sun Wong, 426 U.S. 88, 102 (1976).

to impeachments." Hayburn's Case, 2 U.S. (2 Dall.) 409, 413

(1792).22/

In Benoni v. Boston and Maine Corp., 828 F.2d 52, 55 (1st Cir. 1987), for example, an employee who had unsuccessfully challenged his discharge in federal court thereafter obtained enactment of a private bill in Congress, directing the court to disregard the res judicata effect of the prior decision and to "consider any alleged fraud or corruption" by the arbitration panel that had upheld his discharge. Citing Hayburn's Case, the First Circuit found that such a statute "bristles with constitutional issues related to the separation of powers doctrine, and the equal protection and due process clauses."

Id. at 56.23/

The pendency here of federal court litigation requesting relief virtually identical to that sought by H.R. 3991 makes the "potential for disruption 24/ of the judicial function particularly serious. In the leading case of United States v. Klein, 80 U.S. (13 Wall.) 128 (1872), a property owner had recovered a judgment in the Court of Claims for the proceeds of the sale of his property during the Civil War, by proof of

22/

See also 2 U.S. at 410, 411. Accord, United States v. Ferreira, 54 U.S. (13 How.) 40, 49-53 (1852).

23/

In the light of these significant constitutional problems, the First Circuit construed the private bill not to cover the particular claim at issue.

24/

Nixon v. GSA, 433 U.S. 425, 443 (1977).

loyalty based upon a presidential pardon. Soon thereafter, Congress passed a law declaring that no such pardon should be admissible as evidence of loyalty, that such a pardon should be conclusive evidence of disloyalty, and that any claim based upon such a pardon should be dismissed "for want of jurisdiction." The Supreme Court held that in prescribing the result in a pending case, "Congress has inadvertently passed the limit which separates the legislative from the judicial power. Id. at 146-47. See also United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).

H.R. 3991 is essentially no different from the statute invalidated in Klein. Although in form it does not purport to require modification of a particular court decree, in effect it would invalidate most or all of a court decree by requiring the CPSC to issue orders or rules inconsistent with that decree. Indeed, its expressed purpose is to remedy what its proponents perceive to be the "[in]adequate solution" of a decree that

'isn't good enough."

H.R. 3991 imposes refund requirements that
While H.R. 3991 imposes a total ban on

the decree does not.
sales of three-wheel ATVs, the decree's "stop-sale" provision
would permit such sales to resume in the event that safety stan-
dards acceptable to the CPSC permitted them in the future. While
H.R. 3991 requires the agency to issue rules prescribing training
and information for ATV purchasers, the decree already contains
its own detailed series of such requirements, developed over the

course of months of negotiations.

Finally, while H.R. 3991

imposes mandatory performance and design standards, the decree commits the parties to attempt in good faith to reach agreement 25/ on voluntary standards within four months.

Nor is this H.R. 3991's only threatened disruption to federal judicial proceedings. It would also provide the plaintiffs with relief now sought in three private class actions brought in federal court on behalf of all current owners of 26/ three-wheel ATVS. In those class actions, the plaintiffs

allege that three-wheel ATVs are "dangerous and hazardous." They seek recovery of both compensatory and punitive damages from ATV distributors for alleged misrepresentations under common law fraud, breach of warranty, and other theories

-

including a

25/

H.R. 3991 is thus far more suspect than the kind of "court-stripping" proposal for divesting Judge Greene of consent decree jurisdiction over AT&T and the Bell Operating Companies that was sponsored in 1986 by Senator Dole. Unlike the Dole bill, H.R. 3991 effectively revises the substantive provisions of a judicial decree. Cf. 132 Cong. Rec. S 7750 (June 18, 1986) (constitutionality of Dole bill). Though the Dole bill would merely have transferred administration of the decree from the court to the FCC, many viewed that proposal as "a patent violation of long settled principles of separation of powers. Federal Telecommunications Policy Act of 1986: Hearings Before the Senate Comm, on Commerce, Science, and Transportation, 99th Cong., 2d Sess. 126 (1986); see id. at 132, 140, 147, 239, 259-60, 278-79, 310, 313.

26/

Reinheimer v. American Honda Motor Co., Civil Action No. 88-0237 (E.D. Pa. filed Jan. 13, 1988); Clark v. American Honda Motor Co., Civil Action No. 88-1027 (E.D. Pa. filed Feb. 9, 1988); Boothe v. American Honda Motor Co., Civil Action No. 88-1914 (E.D. Pa. filed Mar. 4, 1988).

request to "vitiate the sale and return monies" to the purchasers.27/

The pendency of such private litigation would not disable Congress from passing general safety or consumer protection legislation providing remedies for misrepresentation. But legislation designed specifically to decide the matters at issue in these pending lawsuits without affording the "losing" party its day in court "interfere[s] impermissibly" with classic judicial functions reserved by Article III to the federal courts.

In this case, the power exercised by H.R. 3991 is

uniquely judicial in nature, because it not only bans particular designs of particular products as hazardous, but also reaches back to undo the effects of specific transactions in those products. We are aware of no prior law enacted by Congress that operates to readjust the legal rights and obligations of particu

lar parties in this fashion. 28/ Quite the contrary. In the Por

tal to Portal Act of 1947, Congress acted to reduce the time period for calculating working hours under the Fair Labor Standards Act. In doing so, however, Congress declined to adopt the approach taken by H.R. 3991. Although reducing the overtime

27/

28/

Complaint 34 (Clark).

Of course, there are many legislative schemes that create new statutory rights or obligations, and that establish administrative agencies prospectively to resolve factual disputes that arise thereunder. As noted above, even in these cases those agency factfinders serve only as "adjuncts" to reviewing Article III courts.