“Without an express congressional statement otherwise, statutes that substantively alter a party’s rights do not apply to pre-enactment conduct.”
—Cory Andrews, WLF General Counsel & Vice President of Litigation

Click here for WLF’s brief.

(Washington, DC)—Washington Legal Foundation (WLF) today asked an en banc panel of the United States Court of Appeals for the Ninth Circuit to return to the ordinary test for determining whether a statute applies retroactively to pre-enactment conduct. WLF’s amicus brief was prepared with the generous pro bono assistance of Joshua M. Wesneski and Sydney Hargrove of Weil, Gotshal & Manges LLP.

Rather than apply the U.S. Supreme Court’s traditional framework from Landgraf v. USI Film Products (1994), the panel here determined the retroactive effect of the 2023 amendment to the Trafficking Victims Protection Act (TVPRA) by asking whether that amendment served only to “clarify the intent of an earlier Congress.”  The panel undertook that inquiry because of previous panel decisions that recognized a so‑called “exception” to Landgraf for statutory amendments that purport to “clarify” the law rather than alter it.

In its amicus brief to the en banc court of appeals, WLF urged the Ninth Circuit to dispense with its “clarifying legislation” exception and decide this case—and all other retroactivity cases—based on Landgraf’s framework. As WLF’s brief explained, the “clarifying legislation” exception is inconsistent with Landgraf. Such amendments in fact raise the precise same fairness and notice concerns as any other change in the law. 

What’s more, the “clarifying legislation” exception elevates Congress’s interpretation of the law over the judiciary’s, violating separation of powers and background constitutional principles.  At bottom, the exception rests on an inaccurate and unrealistic view of the legislative process, presuming that a later Congress can accurately divine the subjective intent of an earlier Congress.  At the very least, WLF contends, the exception should not apply when a precedential decision in a jurisdiction has already construed the relevant statutory provision.