Private: The Constitutionality of Terri Schiavo's Law

By Liz Aloi, Editor-at-Large
As widely reported last week, Congressional intervention in the Terri Schiavo case was designed to overturn numerous decisions of the Florida state courts. It is becoming increasingly common for Congress to try to overturn judicial decisions in spite of Supreme Court precedent against the practice. One of the fundamental principles of the separation of powers is that Congress cannot legislatively overrule court decisions it doesn't agree with. However, many conservatives in Congress have tried to invalidate judicial decisions here and in other cases.
Congressional action in the Schiavo case came in the form of a bill that attempted to circumvent decisions of the Florida state judiciary. The bill, now called Public Law 109-3, gives a Florida District Court jurisdiction to hear a suit or claim "by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life, so long as such a claim is brought by her parents." Without passage of this law, the case would have remained in the Florida state court system.

This was not the first attempt at Congressional intervention in the fate of Mrs. Schiavo. It came after a committee of the U.S. House of Representatives sought to require continued sustenance for Mrs. Schiavo by subpoenaing her as witness at a hearing of the committee on Friday, March 25. Leaders of the House and Senate included her in such a subpoena in order to bring her under the protection of a federal law against interfering with witnesses called before Congress. The federal criminal code protects witnesses called before official Congressional committee proceedings from anyone who may obstruct or impede a witness' attendance or testimony. Of course, being in a permanent vegetative state, there was no possibility that Mrs. Schiavo could appear at such a hearing.
The death of Mrs. Schiavo mooted the opportunity for the courts to rule on the constitutionality of Public Law 109-3, but scholars and judges alike have weighed in on this issue. Last week, Judge Stanley Birch, in a concurrence to a case rejecting her parent's effort to get Mrs. Schiavo's feeding tube reconnected, declared the law unconstitutional.
In declaring the law unconstitutional, Judge Birch, a conservative appointee of President George H.W. Bush, made the following arguments. First, he found that it was a violation of separation of powers principles. The Act required the federal courts to hear the Schiavo claim "de novo" and not consider whether or not such claims were previously raised in state court. While Congress can grant federal jurisdiction under its Article III powers, it is a violation of judicial independence for the legislature to dictate how a federal court should exercise its judicial function. In Judge Birch's words, "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. 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."
Furthermore, Judge Birch found that the portion of the Act which dictated de novo review could not be severed from the section granting federal jurisdiction because unless "it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." The legislative history of the law demonstrates that Congress would not have passed it with a deferential standard of view. Judge Birch also cites to the Rooker-Feldman doctrine, under which federal district and circuit courts lack jurisdiction to review the final judgments of state courts.
A point not addressed by Judge Birch is whether or not the Schiavo Bill is actually a Bill of Attainder. The Constitution forbids such laws, which apply only to a specific individual or individuals. However, the Supreme Court has limited this restriction to cases where legislation inflicts punishment on the affected person.
Judge Birch's concurrence was not joined by other members of the 11th Circuit. Still, he offers guidance to those questioning Congressional tactics related to the Schaivo case. There may never be a determination on the constitutionality of Public Law 109-3, but the voice of one conservative judge may serve as a moderating force the next time Congress attempts to intervene in the state judicial process.