This is an appeal from an order of the district court denying a motion to terminate a consent decree affecting prison conditions and finding a provision of the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, § 802, 110 Stat. 1321, 1321-65 (1996) (codified as 18 U.S.C.A. § 3626(b)(2) (West.Supp. 1998)) (“PLRA” or “the Act”), unconstitutional. That provision mandates immediate termination of previously granted prospective relief, if the relief was granted in the absence of newly-required findings. Id Because the relief at issue here resulted from an agreement of the parties, no findings of fact and conclusions of law were issued at the time relief was granted, and no record was made from which such findings or conclusions could be drawn. We affirm.
I. BACKGROUND
In 1972, two inmates of the Arizona State Prison System filed class action complaints against defendants. The consolidated amended complaint asserted the defendants had violated the First, Eighth, and Fourteenth Amendments by adopting and enforcing unconstitutional disciplinary rules; denying prisoners procedural due process; unlawfully depriving prisoners of good time credits; and subjecting prisoners who were placed in isolation to inadequate diets and degrading living conditions. Before eviden-tiary hearings were completed, the State of Arizona and individual defendants’ predecessors in office entered into a consent decree with plaintiffs. The decree provided for the adoption of new rules of discipline and the restoration of good-time credits. The district court determined under the law that existed at the time that it was inappropriate to make findings of fact or conclusions of law in these circumstances.
The consent decree did not end the dispute between the parties. For more than twenty years no litigation ensued, but on January 6, 1994, defendants filed a motion for modification of the consent decree, contending that changes in the law and factual circumstances warranted modifying the decree. In an order dated' February 24, 1994, the district court granted that motion.
On January 18, 1995, two inmates — who are not named parties in this case — filed a motion to vacate the prior order because they were not given notice of the motion to modify the consent decree. In June 1996, they sought the same relief on behalf of “299 inmates.”
Defendants did not respond to the inmates’ motions, but eventually they filed a motion to terminate the consent decree pursuant to the PLRA. Newly-appointed counsel for the plaintiff class responded to defendants’ motion to terminate, arguing that the PLRA was unconstitutional and moving to vacate the February 24, 1994 order because of defendants’ failure to give notice. Pursuant to the PLRA the district court granted defendants’ motion to terminate the consent decree because plaintiffs conceded they could not provide the findings required for continuation of the decree under the PLRA. The court, however, stayed that order pending a determination of whether the PLRA was constitutional. In its order of March 21, 1997, now on appeal, the district court declared 18 U.S.C.A. § 3626(b)(2) unconstitutional. The February 24,1994 order was vacated but the vacation order was stayed pending resolution of the motion to modify the consent decree.
Defendants and the United States of America, which intervened pursuant to 28 U.S.C. § 2403(a) (1994) to defend the constitutionality of the PLRA, timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C. § 1331 (1994). We • have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) (1994), as this is an appeal from an interlocutory order of the district court refusing to dissolve an injunction. The issue of whether the statutory provision is constitutional is an issue of law subject to de novo review. See Masayesva v. Hale,
, III. THE STATUTE
Section 3626(b)(2) of Title 18 provides:
*1180 (2) Immediate termination of prospective relief. — In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
Id.
A “limitation” on termination is set forth in 18 U.S.C.A. § 3626(b)(3). It reads:
(3) Limitation. — Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.
Id.
Section 802(b)(1) of the Act makes the provisions of the PLRA applicable to “all prospective, relief whether such relief was originally granted or approved before, on, or after the date of the enactment of [the PLRA].”
Section 3626(e)(2) provides for an automatic stay of the termination for thirty days after the filing of the motion to terminate. Presumably this is to allow the court an opportunity to assess the decree according to the new standards. Section (e) was amended to allow postponement of the automatic stay for sixty days for good cause, other than general calendar congestion. See Pub.L. No. 105-119, § 123(a)(3)(C), 111 Stat. 2440, 2470 (1997).
The language of the PLRA suffers from some lack of clarity. For example, the word “relief’ is defined to include “consent decrees,” 18 U.S.C.A. § 3626(g)(9), but a consent decree is hot “relief,” though it provides “relief.”
One might argue that one or more of these ambiguities enables us to read the statute in a manner that avoids the difficult constitutional question. That is, the statute might be read to avoid legislative termination of past consent decrees. See, e.g., Benjamin,
There seems little doubt that the supporters of the PLRA intended to end perceived ongoing micro-management of state and local prison systems by the federal courts. Senator Abraham noted that “the legislation I am introducing today will return sanity and State control to our prison systems.” 141 Cong. Rec. S14316 (daily ed. Sept. 26, 1995) (statement of Sen. Abraham). Similar thoughts were voiced by others. See Catherine G. Patsos, Note, The Constitutionality
IV. CONSTITUTIONALITY OF PLRA § 3626(b)(2)
The main thrust of constitutional challenges to the PLRA has been based on separation of powers principles. A number of district courts, including the court below, have relied on such principles to invalidate § 3626(b)(2) of the PLRA. To date none of those decisions has been upheld. The circuits which have addressed the issue have found 18 U.S.C.A. § 3626(b)(2) constitutional. See Hadix v. Johnson,
We respectfully disagree with our sister circuits. We believe they have not applied Supreme Court precedent upholding the separation of powers among the several branches of government with sufficient force, and conclude that § 3626(b)(2) is indeed unconstitutional. The Act effectively terminates consent decrees which were entered into voluntarily to resolve constitutional claims arising from prison conditions. See 18 U.S.C. § 3626(b)(2). The various saving provisions are illusory. See 18 U.S.C. § 3626(b)(3). Congress, in violation of the Constitution, has reopened the final judgments of the federal courts and unconditionally extinguished past consent decrees affecting prison conditions.
No case is exactly on point, but four Supreme Court cases, when read together, provide a fairly clear answer. The first of these cases is Plaut v. Spendthrift Farm, Inc.,
The Court held that Congress had exceeded its powers in seeking to reopen these final judgments.
When retroactive legislation requires its own application in a case already finally . adjudicated, it does no more and no less than “reverse a determination once made, in a particular case.” Our decisions stemming from Hayburn’s Case5 — although their precise holdings are not strictly ap*1182 plicable here — have uniformly provided fair warning that such an act exceeds the powers of Congress.
Id. at 225,
The question of whether a court has spoken the “last word” with respect to a claim is a more complicated one in the case of ongoing equitable relief. Consent decrees are unquestionably final judgments for some purposes, such as whether parties can appeal (or seek modification of) the relief crafted by a district court. See Rufo v. Inmates of the Suffolk County Jail,
Wheeling involved a dispute over a bridge that spanned a public waterway.
The decree before us, so far as it respeet[s] the costs adjudged, ... is unaffected by the subsequent law. But that part of the decree, directing the abatement of the obstruction, is executory, a continuing decree, which requires not only the removal of the bridge, but enjoins the defendants against any reconstruction or continuance. Now, whether it is a future existing or continuing obstruction depends upon the question whether or not it interferes with the right of navigation. .If, in the meantime, since the decree, this right has been modified by the competent authority, so that the bridge is no longer an unlawful obstruction, it is quite plain the decree of the court cannot be enforced.
Wheeling,
What differentiates the termination provisions of the PLRA from Wheeling, where modification of the injunction was required, is the nature of the “change in law” that the PLRA brings about. The PLRA does not effect a change in the “substantive” law that gave rise to the consent decrees in this case, i.e., the Constitution. Here, what Congress has done is to define the scope and nature of the remedy that it finds appropriate for prisoners who claim constitutional violations. See 18 U.S.C.A. § 3626. With respect to the existing consent decrees, the only “change in law” that Congress has brought about is to say, “terminate the relief.” See 18 U.S.C.A. § 3626(b)(2).
In this assessment we part company with our sister circuits, which apparently find this to be a sufficient change in underlying law. See, e.g., Rouse,
As stated in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., there is
a critical difference between rights created by federal statute and rights recognized by the Constitution ... [S]uch a distinction seems to us to be necessary in light of the delicate accommodations required by the principle of separation of powers reflected in Art. III. The constitutional system of •checks and balances is designed to guard against “encroachment or aggrandizement” by Congress at the expense of the other branches of government. But when Congress creates a statutory right, it clearly has the discretion, in defining that right, to create presumptions, or assign burdens of proof, or prescribe remedies; it may also provide that persons seeking to vindicate that right must do so before particularized tribunals____ No comparable justification exists, however, when the right being adjudicated is not of congressional creation. In such a situation, substantial inroads into functions that have traditionally been performed by the Judiciary cannot be characterized merely as incidental extensions of Congress’ power to define rights that it has created. Rather, such inroads suggest unwarranted encroachments upon the judicial power of the United States, which our Constitution reserves for Art. Ill courts.
The constitutional basis for the decree at issue also distinguishes the case at hand from Mount Graham Coalition v. Thomas,
Further, Congress has done more than simply reopen the final judgment and direct the court to cancel its decrees adjudicating constitutional matters. It has prescribed a rule of decision in a discrete group of Article III eases, in violation of United States v. Klein,
After the Civil War, Congress enacted a statute that permitted noncombatant Confederate landowners to recover confiscated property upon proof of loyalty to the Union. Id. at 131. Klein, representing the estate of a Confederate sympathizer who had been pardoned, presented evidence of the pardon as proof of loyalty in accordance with United States v. Padelford,
Here, Congress directed the outcome of this case and similarly situated pre-PLRA consent decrees. The decrees must terminate. 18 U.S.C.A. § 3626(b)(2)., Because the decrees are issued upon consent, no findings of the sort required by § 3626(b)(2) were made, nor would they necessarily have been made, even in a contested case, given the absence in 1973 of such specific requirements.
Furthermore, the ostensible limitation on termination in 18 U.S.C.A. § 3626(b)(3) provides no room for judicial decision-making. First, the court cannot now make the findings required by 18
While the PLRA purports to limit relief to what is barely necessary to prevent constitutional harm, in fact it prohibits any relief based on past constitutional violations which resulted in consent decrees. Congress has clearly prescribed the decision for past cases in which consent decrees were approved by Article III courts: no relief. If we were in doubt as to whether the rule of Plant forbidding Congressional reopening of final judgments should be applied to the termination of the prospective relief aspects of consent decrees, the doubt is resolved where, as here, Congress has unconditionally terminated relief approved by the court as a remedy for constitutional violations.
Because we find § 3626(b)(2) unconstitutional on separation of power grounds, we do not reach appellees’ due process arguments.
AFFIRMED.
Notes
. We adopt the district court’s recitation of the facts.
. "Current or ongoing” was changed to "current and ongoing” by Pub.L. No. 105-119, § 123(a)(2), 111 Stat. 2440, '2470 (1997). Although this change applies to pending cases, it has no relevance to the issues discussed herein. Id. § 123(b).
. This distinction was central to the holding of Benjamin v. Jacobson,
.Section 3626(a) of Title 18 provides standards for prospective relief and limitations on the extent of relief. It also requires a three-judge court for issuance of prisoner relief orders. 18 U.S.C.A. § 3626(a)(3)(C).
. See Hayburn’s Case, 2 U.S. (2 Dall.) 408,
. Further, the consent decree at issue here was not built on shifting sands. For over twenty years the parties accepted the injunction as the final judgment resolving their dispute in the manner agreed upon. The district court has yet to decide whether modification, based on changing facts or law, other than the PLRA, is now appropriate.
. This argument was raised below, but not briefed on appeal. It was discussed at oral argument. As this issue is purely an issue of law, we may address it. We do so because it is another aspect of the separation of powers principles before us. The circuits which have addressed the issue have rejected it for the same reasons they find Wheeling applicable. See, e.g., Rouse,
. This case, therefore, is once again materially different from Mount Graham, in which we carefully noted that because Congress had made a "change in the AICA, which [it] is entitled to make,” the statute at issue, like the statute in Robertson, "did not violate the rule of United States v. Klein, which prohibits Congress. from directing a particular decision in a case without repealing or amending the law underlying the decision.”