More on whether the Schiavo law is unconstitutional
March 25, 2005
In the comments to my post about the constitutionality of Public Law 109-3, Mahan Atma asked, “What about Plaut v. Spendthrift Farm? This clearly prevents Congress from reopening a case in which there has been a final judgment from an Article III court (roughly speaking).”
I must admit, I’d never heard of Plaut. In that case, the Supreme Court held that Congress exceeded its authority by writing a law that required a court to reopen a case that the court had previously held to be barred by the statute of limitations. “Article III,” wrote Justice Scalia for the Court,
establishes a “judicial department” with the “province and duty ... to say what the law is” in particular cases and controversies. The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy—with an understanding, in short, that “a judgment conclusively resolves the case” because “a ‘judicial Power’ is one to render dispositive judgments.” By retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle.
514 U.S. at 218-19 (citations omitted). At first glance, this seems to address Pub. Law 109-3, but there are important distinctions.
First, 109-3 was specifically limited to allowing a federal forum for federal claims—and, in fact, the parents immediately filed a complaint alleging violations of federal rights. Thus 109-3 didn’t reopen an already decided case, but allowed a new forum for a new case, albeit one arising out of the same facts. The only way to hold that 109-3 was reopening a previously decided case would be to combine it with a preclusionary doctrine—which is a troublesome proposition in a system intended to provide parallel state and federal forums (see the San Remo case I mentioned)—or to combine it with Rooker-Feldman, which I’ll get to in a moment.
Second, Justice Scalia pointed out that the law in Plaut
[was], of course, retroactive legislation, that is, legislation that prescribes what the law was at an earlier time, when the act whose effect is controlled by the legislation occurred—in this case, the filing of the initial…action in the District Court. 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 Case…have uniformly provided fair warning that such an act exceeds the powers of Congress.
514 U.S. at 225 (citations omitted).
Pub. Law 109-3 doesn’t seem to include these flaws.
As for Rooker-Feldman, it is a doctrine of questionable validity to my mind. But assuming it is valid, it prevents a federal district court from taking a case which is nothing more than an attempt to relitigate a matter already decided upon by state court. The doctrine is not constitutional; as Mr. Atma says, it’s a gloss on 28 U.S.C. § 1257, and “there are substantial reasons to doubt that Rooker-Feldman is constitutionally required.” Vicki C. Jackson, Congressional Control of Jurisdiction and the Future of the Federal Courts Opposition, Agreement, and Hierarchy, 86 Geo. L.J. 2445, 2470-71 (1998). See further In re Meyerland Co., 910 F.2d 1257, 1261 n.5 (5th Cir. 1990) (“Although Congress generally forbids the lower federal courts from entertaining appeals from state courts…there is no constitutional prohibition against it doing so.”) We know from Plaut (and Marbury, for that matter) that Congress can alter the statutory jurisdiction of the federal courts so long as it doesn’t exceed Article III in doing so.
Mr. Atma suggests that Article III might be violated by doing so because “Article III does not explicitly say that the lower federal courts can have jurisdiction over state courts. It says the Supreme Court has appellate jurisdiction, but by negative inference, perhaps the lower courts do not.” But 109-3 doesn’t seek to give federal courts any jurisdiction over the state courts. It simply directs the federal courts to take jurisdiction of any case alleging a deprivation of federal rights, which, as I’ve argued, is a power Congress has under the Fourteenth Amendment which at the very least, is subsequent to Article III and therefore expands it. Congress has expanded federal jurisdiction under the Fourteenth Amendment before, as in the Civil Rights Removal Act.
It’s true, of course, that “there is a structural argument for federal court deference to state court judgments.” But there is no Constitutional rule requiring that, and, recognizing that deference is the quickest path ever discovered to a violation of the Fourteenth Amendment, Congress has the authority to erase that deference to a large degree. Most of the deference cases are based on prudential federalism considerations, and are therefore open to change if Congress explicitly and unequivocally chooses to do so—which occurred here.
Finally, Mr. Atma argues that 109-3 could violate equal protection because “[i]f there’s no rational basis for creating a law that treats the Schiavo case individually, it violates Equal Protection. So what’s the rational basis?” I think there’s clearly a rational basis. A rational basis, as Justice Breyer recently explained, means
we can imagine a reason, but if you look at it realistically, you know there's no good reason.... I mean, if you put your mind to it, you can make one up, which is sort of the test for rational basis.... But as soon as we become realistic, there isn't much of a reason.
Well, we can easily imagine an unrealistic reason for 109-3, which is that Terri Schiavo has a federal right not to have her life taken in violation of substantive due process rules, which might include some rule against removing the feeding tube. Again, I don’t find such arguments even slightly convincing, but they’re enough to satisfy rational basis.
I think Mr. Atma’s Plaut Plus Rooker-Feldman, or Plaut Plus Preclusion arguments are very interesting, and definitely better arguments than the federalism objection, but I still don’t think they quite make 109-3 unconstitutional.
Update: Prof. Althouse has some similar thoughts.
Update: More from the ABA Journal, and much more from Hugh Hewitt, Orrin Kerr, Jonathan Adler and others, on Radio Blogger.