Can Congress grant rectroactive immunity?

I’m not wanting to debate the idea of granting retroactive immunity to the phone companies, but I do have a question about this.

Does congress have the authority to grant retrocative immunity in this way.

Laws can not be retroactive. Why can immunity?

This move is to protect the companies from civil lawsuits. I presume that the companies broke some federal law/regulation and that gives the lawsuits merit and by granting this immunity congress is saying that those rules don’t apply or actually did not apply in the past, even though the law or regulation was on the books.
So if congress can’t retroactivly say “No you can’t” why can they say “Yes they could”?

I don’t think there’s a general rule against retroactive laws in the US. There is a principle about not making something a criminal offense retroactively, but that doesn’t apply here. (However, that doesn’t mean that I think that the telecoms should be given immunity from civil suits in this case).

Laws can be retroactive, for any number of reasons. Congress can agree in 2008 that John Doe, injured in an accident on Federal property in 1986, is entitled to compensation and ongoing medical treatment and financial support, retroactively to the date of the accident.

Congress can decide that nationals of American Samoa are U.S. Citizens, retroactively to the day of their birth, if it so chooses (and if it hasn’t already done so).

What cannot be done, by either Congress or the state legislatures, is to make an act which was legal when committed retroactively illegal. That’s an ex post facto law, and that’s the probable source of your impression that Congress can’t legislate retroactively.

  • Article I. Sec. 9 of the US Constitution

The nature of exactly what constitutes an ex post facto law is a subject that the federal courts have made several complex rulings on.

I haven’t studied the matter, but I understood that it was laws that made an act criminal after the act had taken place, not retroactive laws generally. Do you have any cites of cases that have ruled on the meaning of the phrase in this context?

I agree there’s a measure of complexity in interpreting the phrase – but not in the area you seem to think there is.

There is not any interpretation of the ex post facto clause that remotely comes close to forbidding a present grant of immunity for civil liability that covers past conduct.

The complexity to the ex post facto clause arises when considering things like a changed rule of evidence. No one has any trouble with the concept that Congress cannot pass a law making mopery illegal on July 1st, 2007, and the federal government follow that by prosecuting you for mopery committed on June 26, 2007.

But – what if Congress changes the federal rules of evidence on July 1st, 2007, to make admissible certain types of evidence that were not admissble before, and then the government decides to prosecute you? What if the change comes as the result of a Supreme Court ruling about admissibility of evidence?

Interesting stuff, which I’ll be happy to discuss in detail if anyone’s …er… interested. But nothing to do with civil immunity for past conduct.

NOw, that’s not to say that there might not be constitutional implications. In the past, Congress has paired the immunizing of tortfeasors with a statutory compensation fund – the 9/11 fund, for example. Congress said, in effect, here’s this money, but in exchange you can’t sue the airlines. In other instances Congress hasn’t given victims a choice – the asbestos legislation immunized companies against asbestos claims, created a federal compensation fund, and didn’t give victims a choice of opting out and suing.

But is that a matter simply of wise public policy, or is offering some sort of compensation when you take away the right to sue a constitutional requirement?

Probably not. Consider the famous case of Fisch v. General Motors. This was a case that arose from the post-WWII “Fair Labor Standards Act.” After Congress passed the law, the courts interpreting it found that it required a company to pay a worker from the moment they entered the factory, rather than (as had been the practice) only from the moment he actually arrived at his station and began work. These decisions created a veritable onslaught of lawsuits against companies who had been doing it the old way, and Congress reacted by passing a law eliminating the liability after the fact, which law was then upheld by the federal courts.

Obviously, this is not precisely on-point. But I am aware no case law that holds the reverse, nor of a viable constitutional theory that would forbid Congress’ action here.

Most grants of immunity are retroactive.

Most of the grants of immunity, that I hear about, come from a DA or law enforcement, usually in exchange for something like testimony in another criminal case and usually with the permission of a judge.

I also recently heard about Condi Rice promised contractors in Iraq immunity. I also wondered if she had the authority to grant that.

Just who can grant immunity?

Congress seems to grant immunity in civil cases. (asbestos, 9/11, phone companies)
Law enforcement/Judical(?) in criminal cases.

Secretary of State? (overseas?)