[33] WARDLAW, Circuit Judge, with whom THOMPSON, KLEINFELD, SILVERMAN, and GRABER, Circuit Judges, join, dissenting:

In Taylor v. United States, 143 F.3d 1178, 1185 (9th Cir. 1998), a three-judge panel of this court affirmed the district court's invalidation of the termination provision of the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, § 802, 110 Stat. 1321-65 (1996) (codified as 18 U.S.C.A. § 3626(b)(2)) (West Supp. 1999) ("PLRA" or the "Act"). We took this case en banc to consider whether Taylor would remain the law of the circuit. My colleagues affirm, albeit on different grounds than the now-vacated panel decision. Specifically, the majority "affirm[s] the denial of the motion to terminate the December 22, 1972 consent decree on the ground that it was moot." Ante, at 6539. In so holding, the majority today firmly entrenches the Ninth Circuit outside the judicial mainstream of PLRA interpretation. Worse, it effectively precludes Congress from limiting prospectively a discrete kind of federal district court expropriation of power from democratically-elected state governments.

The majority holding is precariously perched upon a mischaracterization of the "judgment" at issue, the consequences of which are nothing short of extraordinary. Indeed, under the approach espoused by the majority, consent decrees plainly providing prospective relief, but fortuitously labeled as "judgments" by district courts in this circuit remain forever beyond the reach of the PLRA's termination provision. Thus, when prison officials in the State of Arizona wish to alter such correctional niceties as the duration of inmate showers or library privileges, they must continue to seek the permission of a federal district judge in Phoenix, a practice they have endured for the past quarter century. As discussed infra, in reaching to avoid the constitutional questions before us today, the majority effectively has rendered the Act a historical nonoccurrence, at least in the Ninth Circuit. I cannot let such a ruling stand without dissent, and respectfully offer mine.

I

When Congress enacted the PLRA, it sought to oust the federal judiciary from day-to-day prison management. To that end, the PLRA authorizes prison officials to return to district court for the immediate termination of prospective relief under existing district court consent decrees. Specifically, the Act entitles defendants in prison-condition lawsuits to:

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.

18 U.S.C.A. § 3626(b)(2) (the "termination provision"). The supervising tribunal may refuse to terminate jurisdiction only if it makes written findings "that prospective relief remains necessary to correct a current or 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." 18 U.S.C.A. § 3626(b)(3) (the "prospective relief provision").

Although several district court judges have sustained inmates' constitutional challenges to the PLRA, every federal appellate court to consider the question, other than this one, has upheld the constitutionality of the Act. See Benjamin v. Jacobson, No. 96-7957, 1999 WL 188240, at *21 (2d Cir. Mar. 23, 1999) (en banc) (holding that section 3626(b)(2) does not violate separation-of-powers principles); Imprisoned Citizens Union v. Ridge, 169 F.3d 178, 188 (3d Cir. 1999) (same); Hadix v. Johnson, 133 F.3d 940, 942-43 (6th Cir.) (same), cert. denied, ___ U.S. ___, 118 S.Ct. 2368, 141 L. Ed.2d 737 (1998); Dougan v. Singletary, 129 F.3d 1424, 1426 (11th Cir. 1997) (same), cert. denied, ___ U.S. ___, 118 S.Ct. 2375, 141 L.Ed.2d 743 (1998); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 657-58 (1st Cir. 1997) (same), cert. denied, ___ U.S. ___, 118 S.Ct. 2366, 141 L.Ed.2d 735 (1998); Gavin v. Branstad, 122 F.3d 1081, 1088-89 (8th Cir. 1997) (same), cert. denied, ___ U.S. ___, 118 S.Ct. 2374, 141 L.Ed.2d 741 (1998); Plyler v. Moore, 100 F.3d 365, 371-72 (4th Cir. 1996) (same), cert. denied, ___ U.S. ___, 117 S.Ct. 2460, 138 L.Ed.2d 217 (1997). Indeed, the Sixth Circuit's decision in Hadix overturned the last of the recalcitrant district courts and momentarily harmonized federal law. Five months after Hadix, this court issued its now-vacated opinion in Taylor.

Although, as the majority correctly points out, the prison officials in the instant case moved to terminate the district court's December 22, 1972, order, that stipulated order was embodied in the district court's subsequent judgment of October 19, 1973. The October 19, 1973, "judgment" accomplished two things. First, it adopted and expressly incorporated the stipulated rules and regulations that would govern the Arizona State Prison in Florence, Arizona. Second, it provided prospective and ongoing relief in that the rules and regulations demanded compliance by the prison officials unless they returned to the district court to obtain modification. Because the majority opinion operates under the faulty premise that the relief embodied in the December 22, 1972, order "disappeared when the final judgment was entered on October 19, 1973," ante at 6538, I now recount the procedural background of this case in some detail to clarify the matter.

Like the litigation that passed before our sister circuits, this controversy originated with a class action brought under 42 U.S.C. § 1983 against a correctional institution. Inmates of the Arizona State Prison System (collectively, "the plaintiffs") filed complaints in 1972 against various state prison officials, alleging unconstitutional conditions of confinement. The consolidated amended complaint averred that the State of Arizona and individual defendants' predecessors in office (collectively, "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. During the first of two evidentiary hearings, the parties stipulated that "[t]he disciplinary procedures of the prison leave something to be desired to comply with constitutional standards" and agreed "to negotiate over proper disciplinary standards and procedures to the end of seeking agreement." Negotiations ensued, and after another evidentiary hearing, the defendants entered into an agreement with the plaintiffs. The agreement called for the defendants to adopt new rules of discipline and to restore good-time credits. The State did not admit liability.

The parties' stipulated agreement is encompassed in the district court's order of December 22, 1972. The agreement substantially bridged the divide that had separated the parties but left some disputed issues unresolved. The parties' agreement was not finalized until several months later when, on October 19, 1973, the district court ultimately adopted the finalized version of the rules and regulations that would govern the Arizona State Prison.

In the December 22, 1972, order, the district court emphasized in a prefatory paragraph that, "[b]ecause of agreements of counsel which prevented a full trial of all issues, findings of fact and conclusions of law are not appropriate." The court noted that "[a]ll the provisions of the following order were agreed upon by counsel for both sides." The court, "[p]ursuant to the stipulation and request of counsel," then ruled on both the substantive and procedural rules of the prison. As to the substantive rules, the court ordered:

1. The defendants, in consultation with counsel for the plaintiffs, shall prepare and submit revised rules.

2. This submission shall be made within ninety (90) days of this order.

3. The plaintiffs shall present exceptions, if any there be, to the proposed rules within thirty (30) days thereafter, or shall waive exceptions.

4. This Court will then adjudicate any appropriate issues, and will declare the resultant rules as generally suitable for use and application until changed.

As to the procedural rules, the December 22, 1972, order reflected the parties' accord on such divergent matters as inmate library privileges, exercise schedules, duration of showers, and entitlement to private counsel during disciplinary proceedings. The court stated that it retained jurisdiction for six months "to review the operation of the appeal system [Paragraph II.F.5]" and "to review [the stipulated disciplinary] procedure . . . to determine that it is operating properly [Paragraph II.D.5]." The court "indicate[d] no opinion as to the constitutionality" of these agreed-upon rules.

On July 25, 1973, the parties neared final consummation of their agreement. The defendants submitted to the district court a proposed final draft of the "Prisoner Rules, Regulations and Discipline Program of the Arizona State Prison." The plaintiffs simultaneously filed objections to specific provisions of the proposed rules. The proposed final draft stated that the rules had been developed "[i]n an effort to promote an orderly day to day operation of this Prison and to maintain the health, safety, security, and general welfare of the prisoners, the staff and others while carrying out these functions." The penultimate sentence of the proposed rules stated that "[t]he provisions herein are to take effect immediately upon final approval of the United States District Court for the District of Arizona."

Final approval came on October 19, 1973, in the form of a "Judgment" from the district court. Unlike the majority, however, I attach no constitutional or jurisdictional import to the fact that the district court labeled its October 19, 1973, order as a "Judgment." This judgment was a consent decree, that is, "[a] judgment entered by consent of the parties whereby the defendant agrees to stop alleged illegal activity without admitting guilt or wrongdoing." Black's Law Dictionary 410 (6th ed. 1990) (defining a consent decree). Moreover, the judgment falls squarely within the PLRA's definition of a consent decree because it "is based in whole or in part upon the consent or acquiescence of the parties." 18 U.S.C.A. § 3626(g)(1). The judgment expressly adopted the stipulated rules and regulations of the Arizona State Prison system, ordering:

That the Prisoner Rules, Regulations and Discipline Program of the Arizona State Prison attached to this Judgment as Exhibit No. I and incorporated by reference are approved, the procedural rules and requirements to be effective immediately, the substantive rules to be effective within a reasonable time to allow for printing in booklet form, presentation to the inmate population and sufficient opportunity for inmates to become acquainted with the violations set out.

Perhaps most importantly for purposes of this litigation, the relief embodied in the prison rules and regulations constitutes "prospective relief" under the meaning of that term as provided by the PLRA. See 18 U.S.C.A. § 3626(g)(7). The district court's judgment recited that the "court having heard arguments, considered pleadings and stipulations, does now order and adjudge. . . ." (emphasis added). The "judgment" dictated the prospective governance of the prison by ordering the Arizona State Prison to comply with the stipulated Prisoner Rules, Regulations and Discipline Program "effective immediately" with respect to procedural rules and "within a reasonable time" with respect to substantive rules. Neither it, nor any other order of the court, vacated the previously entered orders requiring compliance with aspects of the now final rules.

The judgment summarily brought an end to months of negotiation and compromise between the parties. The district court ruled in favor of the plaintiffs and stated "[t]hat all relief sought by plaintiff members of the class heretofore designated to which they are entitled is granted by this Judgment and that the class, collectively and individually, is entitled to no other relief under this action." The judgment defined the class to include "all inmates who were and are serving sentences at the Arizona State Prison during the pendency of this action."

The parties and the district court clearly understood the prospective and mandatory nature of the relief embodied in the prison rules and regulations as adopted by the district court. In the twenty-three years between entry of the October 19, 1973, judgment and the enactment of the PLRA, the defendants availed themselves of the continuing supervisory jurisdiction of the district court on several occasions. In 1979, the defendants proposed new disciplinary rules and regulations and moved to modify the October 19, 1973, judgment pursuant to Federal Rule of Civil Procedure 60(b). That the defendants returned to district court to seek amendments to the prison rules and regulations comes as no surprise, as they clearly understood that they were fulfilling their legal obligations pursuant to a stipulated agreement under the threat of contempt.

On February 11, 1980, the defendants filed a "Reply to Response to Motion to Modify" which incorporated a number of modifications to the proposed rules and regulations "to meet objections raised by counsel for plaintiff class." On March 6, 1980, the district court approved the proposed rules as modified by the February 11, 1980, submission, writing:

It was never intended that the 1973 rules be set in concrete. In view of changing State Prison conditions, a completely reorganized and staffed Department of Corrections, and the developing law in the area of prisoner civil rights, it is not surprising that after almost seven years changes in the rules and regulations should be proposed. The Court has reviewed the proposed rules as modified by defendants' February 11, 1980 pleadings and finds that on their face they meet minimal constitutional standards. In view of this Court's past experience, it is clear that prison inmates will not hesitate to bring to the Court's attention any claimed unconstitutional application of the rules. It is appropriate to here express this Court's appreciation to John P. Frank and his associates of the law firm of Lewis and Roca for their energetic pro bono representation of the plaintiff class. They worked diligently and effectively with defense counsel to protect the interests of their clients. Even though they oppose approval of the new rules as modified, that opposition does not appear to be based on a constitutional question. The Court is grateful for their assistance.

In 1994, the defendants again requested modification of the prison rules due to changes in the law and unanticipated factual circumstances. The district court granted the defendants' motion for modification by an order entered February 24, 1994. On January 18, 1995, two inmates — not previously named as parties — filed a motion to vacate the order, alleging that they had not received notice of the motion to modify the consent decree.

This last motion instigated a series of procedural problems that, for purposes of this appeal, lost their significance when the defendants moved pursuant to the recently-enacted PLRA "to terminate the consent decree entered in this case on December 22, 1972." The district court granted the defendants' motion to terminate but stayed that order pending a determination of whether the termination provision passed constitutional muster. In an interlocutory order issued March 21, 1997, the district court concluded that the termination provision violated the principle of separation of powers. The district court then vacated the February 24, 1994 order, but stayed the vacation order to resolve the motion to modify the December 22, 1972, consent decree.

The defendants and the United States of America, which intervened pursuant to 28 U.S.C. § 2403(a) to defend the PLRA's constitutionality, timely appealed from the interlocutory order of March 21, 1997. The three-judge panel affirmed the district court's invalidation of the PLRA. See Taylor, 143 F.3d at 1179. A majority of active judges voted to rehear the case en banc because the constitutional question presented touches upon a matter of considerable and nationwide public concern. See Taylor v. United States, 158 F.3d 1059 (9th Cir. 1998). This court has jurisdiction under 28 U.S.C. § 1292(a)(1), and I would reverse the district court's order.

II

I am mindful of the rudimentary principle "that constitutional issues not be needlessly confronted," Edward J. DeBartolo Corp. v. Florida Gulf Coast Building Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988), but I am aware of no authority that would compel this court to construe a record "to the point of disingenuous evasion." United States v. Locke, 471 U.S. 84, 96, 105 S.Ct. 1785, 1793, 85 L.Ed.2d 64 (1985) (quoting George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265 (1933)). The majority suggests that "the motion that is before us — `to terminate the consent decree entered in this case on December 22, 1972' — is moot because the December 22, 1972 order (regardless of its label) was interlocutory and disappeared when the final judgment was entered October 19, 1973." Ante, at 6538. The October 19, 1973, judgment, according to the majority, "could not be more final" as "[i]t does not look, walk or quack like an injunction." Id. at 6539. I see the matter differently.

Here, the critical procedural question is not whether the October 19, 1973, judgment is an injunction, but whether the judgment fits within the PLRA's definition of a "civil action with respect to prison conditions in which prospective relief is ordered." 18 U.S.C.A. § 3626(b)(1). The record in this case resoundingly answers this question in the affirmative.

I begin by noting my agreement with the majority's assertion that the October 19, 1973, judgment was not an injunction. Although the majority seems to vacillate on this issue, see ante, at 6548 n. 9, the October 19, 1973, judgment clearly was not an injunction; it was a judgment by consent, entered by sanction and order of the district court. Although they bear some of the earmarks of injunctions, consent decrees do not involve a decision on the merits. As we explained in Gates v. Shinn, 98 F.3d 463, 468 (9th Cir. 1996):

Consent decrees differ from contested injunctions in that, instead of being won in contested litigation, they are issued by the court pursuant to an agreement of the parties. A consent decree is therefore in some respects contractual in nature, but the equitable decree based on the agreement is subject to the rules generally applicable to other judgments and decrees.

(citation and internal quotation omitted). In light of these principles, I am unable to endorse the reasoning advanced by the majority that the agreement embodied in the December 22, 1972, order was not part of the relief that was granted in the October 19, 1973, judgment. For purposes of the PLRA, it was the relief that was granted. See Imprisoned Citizens Union, 169 F.3d at 189 (explaining that the PLRA "broadly defines `prospective relief' as including `all relief other than compensatory monetary damages'") (quoting 18 U.S.C. § 3626(g)(7)); see also Benjamin, 1999 WL 188240, at *10 (noting that the PLRA broadly defines "[a] consent decree . . . as relief entered by the court, and it is well established that a federal court ordinarily has the power to enforce its own orders and judgment") (citations and internal quotation marks omitted). Thus, the majority's suggestion that the defendants should have moved to terminate the October 19, 1973, judgment rather than the December 22, 1972, order, is highly technical and, ultimately, immaterial because the October 19, 1973, judgment expressly adopted the stipulated prison rules and regulations as contemplated in the December 22, 1972, order. Moreover, "[i]t is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities." United States v. M. Cutter Co., 130 F.3d 440, 441 (9th Cir. 1997) (quoting Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 228, 9 L.Ed.2d 222 (1962)).

Consent decrees are jurisprudentially anomalous in that they reflect the attributes of a contract and a judicial act. See Firefighters, 478 U.S. at 519, 106 S.Ct. at 3073. "Though a consent decree has judicial features, it is `the parties' consent [that] animates the legal force of a consent decree.'" Sumner, 994 F.2d at 1406 (quoting Firefighters, 478 U.S. at 525, 106 S.Ct. at 3077). Thus, the supervising tribunal must enforce a consent decree in accordance with the intent of the parties, see System Fed'n No. 91, 364 U.S. at, 647, 81 S.Ct. at 371, and, in doing so, the court maintains authority to modify or interpret such decrees in light of changed circumstances. See id. at 646-47, 81 S.Ct. at 370-71; see also In re Pearson, 990 F.2d 653, 657 (1st Cir. 1993) (explaining that the authority to modify a consent judgment "is part of a court's inherent powers and exists regardless of whether a particular consent decree expressly so provides").

Here, the parties voluntarily terminated a law suit by assenting to the terms specified in the stipulated prison rules and regulations, a negotiated agreement that a federal district court judge in Phoenix, Arizona agreed to enforce as a judgment. The record in this case amply demonstrates that the parties desired and expected that the prison rules and regulations would be reflected in and enforceable as a judicial decree prospectively until such time as the rules were modified or terminated by the district court. Accordingly, I respectfully must disagree with the majority's assertion that the October 19, 1973, judgment "left nothing more for the district court to do." Ante, at 6549. Like the consent decrees at issue in Benjamin, Imprisoned Citizens Union, Hadix, Dougan, and Inmates of Suffolk County Jail, Gavin, and Plyler, the October 19, 1973, judgment entered in this case has subjected the defendants to ongoing federal court supervision and enforcement for the past twenty-five years. Indeed, when the district court entered judgment on October 19, 1973, this litigation was far from "over," and it is no answer to say that "changing the rules did not require court approval." Ante, at 6550 n. 11. In seeking the district court's approval, the defendants were doing quite a bit more than "ask[ing] the court's blessing." Id. Rather, as previously explained, when they moved to amend the rules, the defendants were fulfilling their legal obligations pursuant to a stipulated agreement under the threat of contempt.

Although I am uncertain how a consent decree should look, the October 19, 1973, judgment at issue has neither walked nor quacked like a "final" judgment for the past quarter century. This was just the sort of judgment upon which Congress set its sights when it crafted the PLRA's termination provision. The plaintiffs' challenges to the constitutionality of that provision are live and squarely before us. We should not duck the question.

III

This en banc panel was called upon to consider one question: whether the termination provision contravenes the inviolate constitutional principle of separation of powers. Such questions of law engender de novo review. See Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997).

In determining whether Congress has trespassed into the constitutional sphere occupied by Article III courts, our review is not free from constraint. Rather, when examining congressional enactments such as the PLRA for constitutional infirmities, we "give great weight to the decision of Congress." Confederated Tribes of Siletz Indians v. United States, 110 F.3d 688, 693 (9th Cir.) (citation omitted), cert. denied, ___ U.S. ___, 118 S.Ct. 625, 139 L.Ed.2d 606 (1997). We ordinarily recognize that when a federal court "is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons." Mistretta v. United States, 488 U.S. 361, 384, 109 S.Ct. 647, 661, 102 L.Ed.2d 714 (1989) (quoting Bowsher v. Synar, 478 U.S. 714, 736, 106 S.Ct. 3181, 3193, 92 L.Ed.2d 583 (1986) (Stevens, J., concurring)). Although we may not abdicate our responsibility to strike down constitutionally unsound statutes, this court adheres to a principle of presumptive constitutionality when evaluating the validity of federal statutes. See United States v. Henson, 123 F.3d 1226, 1232 (9th Cir. 1997); see also Phillips v. Perry, 106 F.3d 1420, 1425 (9th Cir. 1997) ("A statute is presumed constitutional, and the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it. . . .") (quoting Heller v. Doe, 509 U.S. 312, 320-21, 113 S.Ct. 2637, 2643, 125 L. Ed.2d 257 (1993) (citations and internal quotations omitted)). It is with these principles that I turn to the merits of this case.

IV

I divide the district court's conclusion that the termination provision violates the separation-of-powers doctrine into two lines of inquiry. First, I examine whether the termination provision constitutes a legislative reopening of the final judgments of Article III courts. See Plaut, 514 U.S. at 218, 115 S.Ct. at 1452-53. Second, I analyze whether the termination provision mandates the result in particular cases or controversies, another impermissible legislative encroachment into Article III territory. See United States v. Klein, 80 U.S. (13 Wall.) 128, 146-47, 20 L.Ed. 519 (1871). I address these issues in turn.

A

The constitutional analysis is circumscribed by three Supreme Court decisions spanning two centuries: Plaut; Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); and Pennsylvania v. Wheeling Belmont Bridge Co., 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1855) (Wheeling II). The district court read these cases as requiring the invalidation of the PLRA's termination provision. I read them differently.

Plaut involved a Congressional attempt to reverse the effects of the Supreme Court's earlier decision in Lampf, Pleva, Lipkind, Prupis Petigrow v. Gilbertson, 501 U.S. 350, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). In Lampf, the Court adopted a uniform national limitations period for civil actions under section 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b). As a result of the Lampf decision, litigants with pending section 10(b) cases found themselves with untimely claims that were then dismissed on the merits. Several months later, Congress enacted a statute that required courts to reinstate a dismissed section 10(b) action on the motion of a plaintiff if the action would have been considered timely before the Lampf decision. The Plaut Court concluded that this prospective restoration of the old limitations period worked an undue legislative interference with the historic independence of Article III courts "[b]y retroactively commanding the federal courts to reopen final judgments." Plaut, 514 U.S. at 219, 115 S.Ct. at 1453. The Court defined "final judgments" as decisions that represent "the last word of the judicial department with regard to a particular case or controversy." Id. at 227, 115 S.Ct. at 1457.

In Rufo, the Court considered the application of finality principles in the context of consent decrees. Rufo involved a county sheriff who sought modification of a consent decree to allow the county jail to bunk two inmates per cell. The district court denied the request, and the First Circuit affirmed, concluding that the consent decree closed the question with finality. The Supreme Court vacated the district court's decision, holding that, "[o]nce a moving party has met its burden of establishing either a change in fact or in law warranting modification of a consent decree, the district court should determine whether the proposed modification is suitably tailored to the changed circumstance." Rufo, 502 U.S. at 391, 112 S.Ct. at 763.

Echoing a tactic frequently employed by courts and commentators, the district court in the case before us extracted from the Rufo decision the following quotation: "a consent decree is a final judgment that may be reopened only to the extent that equity requires." Id., 112 S.Ct. at 764. From this quotation, the district court shaped the following deductive scheme: Congress, under Plaut, cannot mandate the reopening of final judgments without offending the principle of separation of powers; a consent decree is a final judgment under Rufo; therefore, Congress cannot mandate the reopening of consent decrees. The syllogism fails. Although I do not quarrel with its major premise, the minor premise cannot withstand scrutiny.

The Court in Plaut expressly distinguished the statute before it from "legislation . . . that altered the prospective effect of injunctions entered by Article III courts." Plaut, 514 U.S. at 232, 115 S.Ct. at 1459 (citing Wheeling II, 59 U.S. (18 How.) at 421). Wheeling II is the earliest and most significant of a line of cases that are excepted from the general proscription against legislative interference with the final judgments of Article III courts. Wheeling II was the second incarnation of an original action brought in the Supreme Court by the State of Pennsylvania. The State had sued to enjoin the defendant's bridge as an obstruction of navigation on the Ohio River. In the first stage of the litigation, the Court issued an injunction requiring the defendant to remove or elevate the bridge. See Pennsylvania v. Wheeling Belmont Bridge Co., 54 U.S. (13 How.) 518, 626-27, 14 L.Ed. 249 (1852). After this earlier ruling, Congress passed a statute establishing the bridge as a post-road and requiring vessels using the Ohio to avoid interfering with the structure. A storm then destroyed the original bridge, prompting the parties to return to the Court when the bridge company sought to rebuild. Pennsylvania attempted to interpose its original injunction, claiming that Congress lacked constitutional authority to reverse the effects of that injunction through subsequent legislation. The Court disagreed and held that Congress has the power to regulate interstate commerce, which necessarily includes "the power to determine what shall or shall not be deemed in judgment of law an obstruction to navigation." Wheeling II, 59 (18 How.) U.S. at 431.

The Wheeling II Court thus established the precept that a forward-looking judgment in equity remains subject to legislative alterations whereas a judgment at law is forever immune to subsequent changes in the law. See Wheeling II, 59 U.S. (18 How.) at 431; see also Landgraf v. USI Film Prods., 511 U.S. at 273, 114 S.Ct. at 1501 ("When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive."); System Fed'n No. 91, 364 U.S. at 651-52, 81 S.Ct. at 373-74 (holding that the district court abused its discretion by failing to revise an injunction to permit labor practice that had been unlawful at the time consent decree was entered but subsequently had been legalized); Daylo v. Administrator of Veterans' Affairs, 501 F.2d 811, 818 (D.C. Cir. 1974) (holding that vulnerability to legislative alteration "would seem to depend on the character of the compliance called for"). The Rufo Court itself noted the distinction between "restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative." Rufo, 502 U.S. at 379, 112 S.Ct. at 758 (quoting United States v. Swift Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932)).

From Wheeling II and its progeny I distill this clear principle: although a consent decree constitutes a final judgment in the sense that it is an appealable order, it is not a final judgment for separation-of-powers analysis because it does not represent "the last word of the judicial department with regard to a particular case or controversy" as set forth in Plaut. 514 U.S. at 227; 115 S.Ct. at 1457. As other circuits have concluded, although a consent decree is a final judgment, it is not the last word of the judicial branch. See, e.g., Dougan, 129 F.3d at 1426. The courts maintain jurisdiction over these judgments, not only to ensure compliance, but also to modify them as future changes in the facts and law may require. See Imprisoned Citizens Union, 169 F.3d at 184, Gavin, 122 F.3d at 1087; Plyler, 100 F.3d at 371.

The principle set forth above, of course, undermines the minor premise in the district court's deductive scheme and dismantles the syllogism. It does not answer, however, the more difficult question whether Congress, rather than the judicial department, possesses the constitutional authority to reopen a consent decree "to the extent that equity requires."

I recognize that neither Wheeling II nor Plaut is completely instructive on this weighty issue. In Wheeling II, the Court itself decided that it would not enforce its original injunction after the law had been changed by Congress. See Wheeling II, 59 U.S. (18 How.) at 431-32. Congress, however, did not mandate that decision directly. In Plaut, the Court distinguished between a district court's discretionary power to set aside a judgment pursuant to Federal Rule of Civil Procedure 60(b), the procedural mechanism at issue in Rufo, and Congress' attempt to require that a judgment be set aside. See Plaut, 514 U.S. at 233-34, 115 S.Ct. at 1460-61. Notwithstanding those distinctions, the termination provision survives. This is so because the relief at issue is embodied in the idiosyncratic form of a consent decree. See Gavin, 122 F.3d at 1088 ("Our inquiry . . . is whether the consent decree is the `last word' of the Article III courts in the case, and the existence of Rule 60(b), as construed in Rufo, makes it unlikely that a court's approval of a consent decree constitutes the court's `last word' on the issue of what relief is appropriate in perpetuity."). I conclude that the termination provision removes only the court's power in the future to enforce previously-ordered equitable relief when prospective relief, as broadly defined by the PLRA, does not remain necessary to correct a current, ongoing violation of a federal right. See Local Number 93, Int'l Assoc. of Firefighters v. City of Cleveland, 478 U.S. 501, 525, 106 S.Ct. 3063, 3077, 92 L. Ed.2d 405 (1986); Imprisoned Citizens Union, 169 F.3d at 184; see also Gavin, 122 F.3d at 1086 ("Congress may alter the remedial powers of the federal courts so that the courts may not enforce equitable relief previously awarded in pending cases.").

My reading of the intersection among Plaut, Rufo, and Rule 60(b) is by no means a novel one, for Congress possesses well-established authority to require a court in equity to make specific findings before issuing injunctive relief. See Lauf v. E.G. Shinner Co., 303 U.S. 323, 330, 58 S.Ct. 578, 581, 82 L.Ed. 872 (1938) ("There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States.") (upholding Norris-LaGuardia Act, 29 U.S.C. § 101-115 (1994)); 28 U.S.C. § 2283 (1994) (Anti-Injunction Act); 28 U.S.C. § 1341 (1994) (Tax Injunction Act). That the original supervising tribunal in the case at bar issued the injunctive relief before Congress restricted the court's authority to do so is "of [no] constitutional significance." Gavin, 122 F.3d at 1087; see also Western Union Tel. Co. v. International Bhd. of Elec. Workers, 133 F.2d 955, 958-59 (7th Cir. 1943) (requiring district court to apply Norris-LaGuardia Act to injunction entered eight years before the Act was enacted).

As a final matter, I observe that the district court found the Wheeling II line of cases inapposite, narrowly interpreting Wheeling II to stand for the proposition that Congress may interfere with consent decrees only to the extent that the relevant legislation is based on "public rights common to all." Taylor v. Arizona, 972 F. Supp. at 1246 (citing Wheeling II, 59 U.S. (18 How.) at 432-32). I would reject the so-called public rights/private rights distinction in this context. The authority to do so rests in Plaut where the Supreme Court stated that "the doctrine of separation of powers is a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm, can be identified." Plaut, 514 U.S. at 239, 115 S.Ct. at 1463. In other words, the source of the underlying right is irrelevant to the separation-of-powers inquiry. See Gavin, 122 F.3d at 1088 ("The character of the right involved has nothing to do with the separation-of-powers issue.") (citing Plaut, 514 U.S. at 230, 115 S.Ct. at 1458); see also Imprisoned Citizens Union, 169 F.3d at 186 ("[T]he Wheeling Bridge Court's decision ultimately turned on the nature of the relief, not the source of the right."); cf. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 853-54, 106 S.Ct. 3245, 3258-59, 92 L.Ed.2d 675 (1986) (analyzing the public/private rights distinction in the context of Congress' power to assign certain controversies to non-Article III tribunals); Hodges v. Snyder, 261 U.S. 600, 60304, 43 S.Ct. 435, 436-37, 67 L.Ed. 819 (1923) (analyzing the distinction in the context of due process and vested rights).

Moreover, even were I to accept the district court's "public rights" requirement as narrowing the circumstances under which Congress may alter prospective judgments, I still would uphold the termination provision. Recognizing that we must, whenever possible, interpret a statute in a fashion that renders it constitutionally valid, see Communications Workers of Am. v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 2657, 101 L.Ed.2d 634 (1988), I read the provision as nothing more than a generally applicable change in substantive statutory law. See Imprisoned Citizens Union, 169 F.3d at 186-87 ("Our holding today would be no different if we were to decide that the Wheeling Bridge exception only applies where public rights are at stake. To whatever extent the consent decree embodies private rights, those rights are unaffected by the PLRA."); see generally Guido Calabresi, Retroactivity: Paramount Powers and Contractual Changes, 71 Yale L.J. 1191, 1198-99 (1962) (evaluating Congressional enactments that alter the effect of existing contractual obligations of the federal government). Because nothing in the case law convinces me that the source of the legal rule is dispositive, I cannot say that the termination provision amounts to a legislative reopening of a final judgment.

B

I next turn to the question whether the termination provision prescribes a rule of decision in violation of a different aspect of the separation-of-powers principle, first articulated by the Supreme Court in the years following the Civil War. See Klein, 80 U.S. (13 Wall.) at 146-47. The plaintiff in Klein was the administrator of the estate of V.F. Wilson, a Confederate sympathizer. Congress had passed a statute that permitted noncombatant Confederate landowners to recover confiscated goods upon proof of their loyalty to the Union. The administrator brought suit in the Court of Claims pursuant to this statute, attempting to recover proceeds from the sale of Wilson's previously confiscated cotton. To that end, the administrator tendered evidence that Wilson had received a presidential pardon, mindful that the Supreme Court earlier had held that such a pardon was conclusive proof of loyalty. See United States v. Padelford, 76 U.S. (9 Wall.) 531, 19 L. Ed. 788 (1869). The Court of Claims ruled in favor of the administrator, but as his claim was on appeal to the Supreme Court, Congress passed a statute which declared that a presidential pardon actually proved disloyalty. Accordingly, the new statute directed the judiciary to dismiss any pending recovery actions brought on behalf of a pardon recipient. See Klein, 80 U.S. (13 Wall.) at 131-34.

When the government moved the Supreme Court to dismiss the administrator's case, the Court struck down the statute. See id. at 148. It held that the new statute "passe[d] the limit which separates the legislative from the judicial power" by requiring the trial court "to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill." Id. at 146. By forcing courts to discount the legal or evidentiary effect of a presidential pardon, Congress had "prescribe[d] a rule for the decision for a cause in a particular way." Id. In reaching its holding, the Klein Court distinguished Wheeling II as an instance in which "the court was left to apply its ordinary rules to the new circumstances created by the act [whereas in Klein] no new circumstances have been created by the act." Id. at 147.

Although the Supreme Court has not delineated "the precise scope of Klein . . ., later decisions have made clear that its prohibition does not take hold when Congress `amend[s] applicable law.'" Plaut, 514 U.S. at 218, 115 S.Ct. at 1452 (quoting Robertson v. Seattle Audubon Society, 503 U.S. 429, 441, 112 S.Ct. 1407, 1414, 118 L.Ed.2d 73 (1992)); see also Axel Johnson Inc. v. Arthur Andersen Co., 6 F.3d 78, 81 (2d Cir. 1993) ("Klein does not preclude Congress from changing the law applicable to pending cases.") (citations omitted). "Thus, if a statute `compel[s] changes in the law, not findings or results under old law,' it merely amends the underlying law, and is therefore not subject to a Klein challenge." Imprisoned Citizens Union, 169 F.3d at 187 (quoting Robertson, 503 U.S. at 438, 112 S.Ct. at 1413).

In resolving whether the termination provision impermissibly prescribes a rule of decision, I conclude that the termination provision falls more neatly under the Wheeling II paradigm. When the termination provision is read conjunctively with the prospective relief provision, the result is a rather narrow limitation that preserves the need for judicial decision-making. Under the PLRA, a district court now must determine (i) whether there is a current and ongoing violation of a federal right and (ii) whether prospective relief remains necessary to correct such a violation. See 18 U.S.C.A. §§ 3626(b)(3). If the court answers both questions in the affirmative, it must then determine what type of prospective relief furnishes the least intrusive means to correct the violation. See id. §§ 3626(a)(1)(A), (b)(2), (b)(3). Only after resolving the first two questions may the court determine whether prospective relief terminates, or, instead, if prospective relief still must be fashioned to fit the failing found. In view of this scheme, it cannot be said that the termination provision leaves a district court with "no adjudicatory function to perform." United States v. Sioux Nation of Indians, 448 U.S. 371, 392, 100 S.Ct. 2716, 2729, 65 L.Ed.2d 844 (1980). Rather, the PLRA "has left the judicial functions of interpreting the law and applying the law to the facts entirely in the hands of the courts." Gavin, 122 F.3d at 1089; accord Hadix, 133 F.3d at 943 ("The interpretation and application of law to fact and the ultimate resolution of prison condition cases remain at all times with the judiciary.").

Under the PLRA, courts remain free to interpret the law in prison conditions litigation and to apply the law to the facts as the court discerns them. Stated more simply, the termination provision lets judges be judges. For this reason, the PLRA does not run afoul of the Klein doctrine.

V

The simple labeling of the consent decree at issue as a "judgment" did not eradicate the district court's continuing supervisory power over the management of the Arizona State Prison System. That decree was hardly the "last word of the judicial branch" as to the rules the prison officials abided by, subject to contempt of court. Therefore, we were required in this case to determine whether through the PLRA, Congress is empowered to require the district court to cease his management of the prison system, unless he makes the findings required by the PLRA. Supreme Court precedent, the inherently impermanent nature of relief obtained through consent decrees, and the presumptive cloak of constitutionality adorning federal statutes convince me that the enactment of the termination provision was well-within Congressional power and did not encroach into the powers traditionally reserved for Article III tribunals.

[81] GRABER, Circuit Judge, with whom KLEINFELD and WARDLAW, Circuit Judges, join, dissenting:

I dissent. I join the dissenting opinion of Judge Wardlaw, because (1) the "judgment" in this case embodies prospective relief — as the district court and the parties well understood over the years — making the constitutional question ripe for decision, and (2) the termination provision of the Prison Litigation Reform Act of 1995, 18 U.S.C. § 3626(b)(2), is constitutional in limiting prospective relief. I write separately to address an additional flaw in Judge Rymer's analysis: her inclusion of Part II(B).

When a majority opinion holds, as this one does, that our court lacks a proper opportunity to decide a legal issue that the parties attempt to present, a dissenter has two choices. She can limit her disagreement to the question of our court's authority, or she can go on to describe how she would resolve the substantive issue that, in her view, the court has authority to decide. The dissenter's choice of the latter style grants no license to the author of the majority opinion to include dictum on the substantive issue. Such dictum dilutes the message that the bench and bar should be receiving: that the substantive issue remains unresolved as a matter of law.