Faith, Beer, and Other Things That Interest Geoff

Constitutional Issues From the 11th Circuit Decision

Judge Birch ruled against the appeal from Terri Schiavo's parents, declaring the legislation giving them the right to appeal was unconstitutional. Judge Birch said it violated the separation of powers. I disagree, but I thought I would present portions of Judge Birch's decision followed by Judge Tjoflat. The decisions can be found here.

From Judge Birch's decision:

A popular epithet directed by some members of society, including some
members of Congress, toward the judiciary involves the denunciation of “activist
judges.” Generally, the definition of an “activist judge” is one who decides the
outcome of a controversy before him according to personal conviction, even one
sincerely held, as opposed to the dictates of the law as constrained by legal
precedent and, ultimately, our Constitution. In resolving the Schiavo controversy
it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at
odds with our Founding Fathers’ blueprint for the governance of a free people —
our Constitution. Since I have sworn, as have they, to uphold and defend that
The court is duty-bound to question at anytime in a proceeding the bona fides of its jurisdiction. Ortiz v. Fibreboard Corp., 527 U.S. 815, 831, 119 S.Ct. 2295, 2307 (1999); National Solid Wastes Mgmt. Ass’n v. Alabama Dep’t of Env’t Mgmt., 924 F.2d 1001, 1002 (11th Cir. 1991). Given the rapid developments and sensitivities in this case, the need for deliberative study necessitated the delay in my questioning our jurisdiction.

Under the Rooker-Feldman doctrine, federal district and circuit courts lack jurisdiction to review the final judgments of state courts. The doctrine applies where “(1) the party in federal court is the same as the party in state
court; (2) the prior state court ruling was a final or conclusive judgment on the merits; (3) the party seeking relief in federal court had a reasonable opportunity to raise its federal claims in the state court proceeding; and (4) the issue before the federal court was either adjudicated by the state court or was inextricably intertwined with the state court’s judgment.” Amos v. Glynn
County Bd. of Tax Assessors, 347 F.3d 1249, 1265 n.11 (11th Cir. 2003) (internal citations omitted).

We are mindful that there exists an exception to Rooker-Feldman when a federal
Covenant, I must respectfully concur in the denial of the request for rehearing en
banc. I conclude that Pub. L.109-3 (“the Act”) is unconstitutional and, therefore,
this court and the district court are without jurisdiction in this case under that 1
special Act and should refuse to exercise any jurisdiction that we may otherwise
have in this case.
...
Against these most elementary of constitutional principles, Section 1 of Pub.
L. 109-3—which states that the United States District Court for the Middle
District of Florida shall have jurisdiction to hear a suit regarding alleged violations of rights held by Mrs. Schiavo “under the Constitution or laws of the United States”—is not facially unconstitutional. If the Act only provided for jurisdiction consistent with Article III and 28 U.S.C. § 1331, the Act would not be in violation of the principles of separation of powers. The Act, however, goes further. Section 2 of the Act provides that the district court: (1) shall engage in “de novo” review of Mrs. Schiavo’s constitutional and federal claims; (2) shall not consider whether these claims were previously “raised, considered, or decided in State court proceedings”; (3) shall not engage in “abstention in favor of State court
proceedings”; and (4) shall not decide the case on the basis of “whether remedies
available in the State courts have been exhausted.” Pub. L. 109-3, § 2. Because
these provisions constitute legislative dictation of how a federal court should
exercise its judicial functions (known as a “rule of decision”), the Act invades the
province of the judiciary and violates the separation of powers principle. An act of Congress violates separation of powers if it requires federal courts to exercise their Article III power “in a manner repugnant to the text, structure, and traditions of Article III.”

From the portion of the dissent which rebuts this argument:

Judge Birch now argues that this court lacks jurisdiction to entertain this case due to constitutional infirmities in the legislation enabling federal review of this case. In particular, he identifies four provisions of the act that “constitute legislative dictation of how a federal court should exercise its judicial functions.” I believe that it is fully within Congress’s power to dictate standards of review and to waive in specific cases nonconstitutional abstention doctrines.
Indeed, if Congress cannot do so, the fate of hundreds of federal statutes would be called into serious question. (itallics mine) I wish to dispel any questions about our jurisdiction in this case.

Under Article III, Congress has the power both to establish federal courts
and, except as to the original jurisdiction of the Supreme Court, to make
exceptions and regulations as to their jurisdiction. U.S. Const. art. III. The
Supreme Court has recognized, at least in some contexts, that Congress also has
the power to require federal courts to entertain causes of action they would not
otherwise have entertained for prudential reasons. Cf. Raines v. Byrd, 521 U.S.
811, 820 n.3 (1997) (“It is settled that Congress cannot erase Article III’s standing
requirements by statutorily granting the right to sue to a plaintiff who would not
otherwise have standing. . . . We acknowledge, though, that Congress’ decision to
grant a particular plaintiff the right to challenge an Act’s constitutionality . . .
eliminates any prudential standing limitations and significantly lessens the risk of
unwanted conflict with the Legislative Branch when that plaintiff brings suit.”
(citation omitted)).

This is not a case, to use separation-of-powers parlance, of Congress
“arrogating” power to itself, nor is it a case in which one branch of government
has “impair[ed] another in the performance of its constitutional duties.” Loving v.
United States, 517 U.S. 748, 757 (1996) (emphasis added). Instead, Congress has
prescribed a particular approach to a particular problem in the general domain of
federal jurisdiction, without presuming to dictate—in any respect—our
performance of a court’s essential function: “to say what the law is.” Marbury v.
Madison, 5 U.S. (1 Cranch) 137 (1803) (Marshall, C.J.). It is in this domain that
the Supreme Court has jealously guarded our power against intrusion by Congress.
See, e.g., Dickerson v. United States, 530 U.S. 428, 432 (2000) (“We hold that
Miranda, being a constitutional decision of this Court, may not be in effect
overruled by an Act of Congress, and we decline to overrule Miranda ourselves.
We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and
federal courts.”).

Here, Congress has attempted only what has long been established to be
within its power to dictate: our standard of review, the effect of a prior state court judgment on that review, the application of prudential abstention doctrines, and the effect of exhaustion requirements. I know of no case barring Congress from
so dictating, and Judge Birch does not cite any. Indeed, quite to the contrary,
Judge Birch cites cases establishing that both our abstention and exhaustion
doctrines are prudential. If none of these dictates by itself goes beyond Congress’s power to determine the jurisdiction of federal courts, I know of no doctrine that could convert their aggregation into a separation-of-powers violation.

You've read this far congratulations. I omitted some legal footnotes, so if you are a real legal-eagle, you may want to follow the link to the original decision above. Judge Tjoflat did a fine job in his dissent and explaining this Constitutional issue.