Wednesday, March 30, 2005

Demonstrably At Odds With Our Constitution

The Eleventh Circuit Court of Appeals has once again denied a Schindler Petition for Rehearing En Banc. What is significant in this denial is the written opinion of Justice Stanley F. Birch, Jr. who alone opined on the constitutionality of S.686 rushed through both houses of Congress and signed at 1:00 a.m. by President Bush. It is also important to note, Justice Birch was appointed to President George H. Bush, a conservative Republican. You can read his official biography here. The United States Supreme Court refused to hear the appeal of the Eleventh Circuit's decision.

I point out that Justice Birch's opinion does not reflect the opinion of the court. The Eleventh Circuit did not, as a majority hold this particular law unconstitutional; however, it does reflect the opinion of at least one of the justices on the Eleventh Circuit. It is quite likely others did not join that opinion or reach the ultimate constitutional determination since they were not required to do so, and the issues were resolved on other grounds.

I personally agree with Justice Birch's analysis, and will provide brief commentary and quotes from his opinion. Justice Birch begins his opinion with a very human analysis, acknowledging the tragedy of this case for both the Schiavo and Schindler families:

An axiom in the study of law is that “hard facts make bad law.” The tragic events that have afflicted Mrs. Schiavo and that have been compounded by the resulting passionate inter-family struggle and media focus certainly qualify as “hard facts.” And, while the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty.


Continuing, Justice Birch points out a critical truth, one which I believe is the primary underlying motivation for those who have turned the Constitution on its head by the passage of this law--the perception of judicial activism:

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.


Concluding the law to be unconstitutional, Justice Birch continued:

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 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 special Act and should refuse to exercise any jurisdiction that we may otherwise have in this case.

An interesting commentary is his observation that justices have sworn to uphold the same Constitution as have legislatures and executives. And, that the legislative and executive acts in passing and signing this law were demonstrably at odds with that Constitution.

Justice Birch correctly noted that:

Since the passage of Pub. L. 109-3 on the morning of March 21, 2005, its constitutionality has been presumed. (Citations omitted). In the instant appeal, our court and the district court continue to indulge this presumption and decline to address the constitutionality of the law which purports to grant federal jurisdiction. See Schiavo ex. rel. Schindler v. Schiavo, No. 05-11628 (11th Cir. March 25, 2005). Jurisdiction, however, is a prerequisite to the legitimate exercise of judicial power, and therefore we may not hypothetically assume jurisdiction to avoid resolving hard jurisdictional questions. I write separately to explain how various provisions of Pub. L. 109-3 are an unconstitutional infringement on the core principles of separation of powers and how this dynamic nullifies the exercise of federal jurisdiction in this case.


Separation of Powers:

Justice Birch's primary constitutional focus was grounded in the separation of powers, noting:

It is axiomatic that the Framers established a constitutional design based on the principles of separations of powers (Citations omitted). The Framers established three coequal but separate branches of government, each with the ability to exercise checks and balances on the two others. And to preserve this dynamic, the "Constitution mandates that 'each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, or either or the other.'" (Citations omitted).

Because of the important constitutional role assigned to the judiciary by the Framers in safeguarding the Constitution and the rights of individuals, see, Federalist No. 78 (A. Hamilton), the execution of this constitutional mandate is particularly important when legislative acts encroach upon the independence of the judiciary . . . (citing Federalist No. 48 for the proposition that the Framers enshrined in the Constitution separation of powers principles because of past legislative interference with the judiciary); . . . "[T]he independence of the judiciary [must] be jealously guarded." Accordingly, we risk imperiling our constitutional design if we do not inquire as to whether Pub. L. 109-3 infringes on the independence of the judiciary guaranteed by Article III of the United States Constitution.


Justice Birch has prophetic insight, in declaring this law unconstitutional as a violation of the separation of powers. Its intent was a clear attempt by the legislative and the executive to encroach on an independent and co-equal judiciary and to emasculate the substantive and procedural due process achieved by the Florida State courts in several years of litigation and appeals. The Florida Supreme Court reached a similar conclusion on the same constitutional principle when the Florida Legislature and Governor Bush tried to similarly encroach on the Florida judiciary.

The legislative confirmation of jurisdiction on the federal courts of the Terri Schiavo matter was not the abuse of separation of powers. Rather, as Justice Birch explained:

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." (Citations omitted). 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." (Citations omitted). 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 left to the federal court to decide. (Citations omitted). In fact, the establishment of a standard of review often dictates the rule of decision in a case, which is beyond Congress's constitutional power. (Citations omitted). In addition, "the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties." (Citations omitted). By denying federal courts the ability to exercise abstention or inquire as to exhaustion or waiver under State law, the Act robes federal courts of judicial doctrines long-established for the conduct of prudential decisionmaking.


In concluding his opinion, Justice Birch, ominously warned all Americans:

The separation of powers implicit in our constitutional design was created "to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility." (Citations omitted). But when the fervor of political passions moves the Executive and the Legislative branches to act in ways inimical to basic constitutional principles, it is the duty of the judiciary to intervene. (Emphasis added). If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow. (Citations omitted--Emphasis in original). Accordingly, we must conscientiously guard the independence of our judiciary and safeguard the Constitution, even in the face of the unfathomable human tragedy that has befallen Mrs. Schiavo and her family and the recent events related to her plight which have troubled the consciences of many.
For these reasons, Congress's enactment of this statute encroached on the judicial functions, power, and authority, in contravention to and demonstrably at odds with our Constitution.

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