In some posts earlier, I made my argument that the special act granting federal courts jurisdiction to hear the Terri Schiavo matter was not unconstitutional. Today, in concurring in the 11th Circuit’s decision denying rehearing en banc, Judge Birch declared that in his view, 109-3 is unconstitutional.
Birch’s opinion makes the following argument: with regard to separation of powers, 109-3 goes too far; rather than "provid[ing] for jurisdiction consistent with Article III and 28 U.S.C. s 1331," it also
provides that the district court: (s) 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”...and (4) shall not decide the case on the basis of...exhaustion.
These elements mean that 109-3 “constitute[s] legislative dictation of how a federal court should exercise its judicial functions”:
By setting a particular standard of review in the district court, Section 2 of the Act purports to direct a federal court in an area traditionally let to the federal court to decide.... By denying federal courts the ability to exercise abstention or inquire as to exhaustion or waiver under State law, the Act robs federal courts of judicial doctrines long-established for the conduct of prudential decisionmaking.
But I’m afraid I still don’t buy this. If judicial doctrines are “established” by the judiciary itself, they are not binding on the Congress unless and to the extent that those doctrines are required by the Constitution. Congress empowered the Federal Rules of Civil Procedure, after all, and has the authority to alter the rules of evidence, so long as these alterations do not violate the Constitutional standards of due process. Congress is, after all, given the authority to regulate and create exceptions in the Supreme Courts’ appellate jurisdiction both as to law and fact, under Article III. If Congress can do these things, I see no reason that it cannot declare that non-constitutional limits on the federal judiciary’s authority—such as prudential abstention rules—shall not apply in this circumstance. Of course, Congress can’t alter the Constitutional limits on the federal judiciary, see Marbury, but Judge Birch is referring to the “prudential decisionmaking” doctrines that were established by the courts to avoid unintentionally stepping on state toes—not doctrines that entirely forbid the federal government from purposely stepping on toes.
Nor do I buy the argument that Congress lacks power to set a particular standard of review. This is, of course, the binding law, under City of Boerne, but, again, there is no constitutional foundation for the entire concept of standards of review in civil cases, except to the degree that the federal constitution incorporates some common law principle or other.
Birch goes on to make the argument that “because [109-3] applies only to this case, it lacks the generality and prospectivity of legislation that comports with the basic tenets of the separation of powers,” but there is no such requirement. Congress has the authority to enforce the Fourteenth Amendment by appropriate legislation—not even by appropriate “laws,” so that special, personal laws are permitted under the Amendment, with no obvious limitation to prospectivity or generality requirements. By my reading of the Fourteenth Amendment, Congress could legally establish special courts to hear each and every alleged violation of the Fourteenth Amendment ever committed, if it wanted to take the time to do so. Any attempt to restrict this power—by, for example, importing a generality or prospectivity requirement into the term “appropriate” in the Fourteenth Amendment, City of Boerne-style—would, I think, be to “establish” a “judicial doctrine” far in excess of the judicial power.
Judges Tjoflat and Wilson, in part II of their dissenting opinion (p.27), respond to Judge Birch’s arguments in a manner I find convincing.
Reasonable minds, of course, can disagree as to these jurisdictional issues. I just disagree with Judge Birch’s separation of powers argument.