Thursday, March 31, 2005


11th Circuit Court on Bush and Congress

Judge Birch "specially concurring" for the U.S. Court of Appeals for the Eleventh Judicial Circuit, 127kb pdf, (my emphasis)
[T]he time has come for dispassionate discharge of duty.

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 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.

...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.

...the establishment of a standard of review often dictates the rule of decision in a case, which is beyond Congress's constitutional power...In addition, "the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties." 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.

By arrogating vital judicial functions to itself in the passage of the provisions of Section 2 of the Act, Congress violated core constitutional separation principles, it prescribed a "rule of decision" and acted unconstitutionally.

Judge Birch cites precedent for finding a congressional act unconstitutional.

I also think there is an off-handed jab concerning state's rigthts:
Article III provides that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. CONST. art. III, § 1...These provisions have led courts to the unremarkable conclusion that "[f]ederal courts are courts of limited jurisdiction" and may only exercise jurisdiction allowed under the Constitution when "authorized by . . . statute."
Keep in mind he would have seen Gore vs. Bush pass through his court. Bush's whole argument was the federal court was not authorized to review that matter.

Note, "de novo": A trial de novo is a type of appeal in which the appeals court holds a trial as if a prior trial had never been held...Because of concerns about protecting an individual's rights against double jeopardy ordering a trial 'de novo' is often the exclusive right of an appeal judge. (

According to the NYTimes, Bush and Congress Rebuked in Schiavo Case,
Judge Stanley F. Birch Jr. [was] appointed by the first President Bush in 1990...has a reputation as consistently conservative.
Checking his bio, he is also a Vietnam Veteran (and a UVa grad).

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