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Monday, April 04, 2005

I Guess I Underestimated the Left

I had previously assumed that "no one . . . really thinks this thing is unconstitutional" and T. More noted how bad the arguments were that Prof. Tribe was making in the aftermath of the statute. I didn't see Tribe's nonsense, and everything I've read, including a piece by Dorf, concedes that the Schiavo statute is constitutional, regardless of how wise it was to pass.

But, alas, I spoke to soon. We have today on ACSBlog a silly argument that the Schiavo statute was unconstitutional.

I agree with T. More that this statute was bad policy. But there are (left wing, brace yourself) things that can be bad policy, but still constitutional.

All of the arguments in the post, and in the Birch opinion that the post so heavily relies on, attack the constitutionality of the statute on what it was intended to do.

First, that "Congress cannot legislatively overrule court decisions it doesn't agree with." The word "overrule" here is being used rather lazily because the Schiavo statute is not revisiting the state court decision. The decision stands, but Ms. Schiavo's parents have standing to bring an action alleging that Terri's due process rights were being infringed. Congress is not "overruling" Florida state family law, but is letting a federal court adjudicate Ms. Schiavo's constitutional due process rights.
And moreover, there is absolutely no problem with Congress overruling the courts when it does so pursuant to an enumerated power. I think it was Kroger that Congress overruled in the context of supplemental jurisdiction, and all the age discrimination and disabled discrimination statues are all an overruling of the court failing to find equal protection violations. The whole Section 5 struggle evidences this--Congress can't pass these age, disabled, religion discrimination statutes when it's ratcheting up a 14th Amendment right, but that's not because the Court is the grand issuer of moral decisions, but because of federalism--Congress isn't acting pursuant to a valid enumerated power. Here, not the case.
I'm not sure what the ACS post really means with this, because it later admits that Congress actually can regulate the jurisdiction of federal courts under Article III.
Now, it's clear that the intended effect of the jurisdictional statute was a reversal of the effects of the Florida Supreme Court decision. But I still haven't heard an argument as to why the intent of the statute matters. It surely doesn't in the commerce clause realm.

Second, that a congressional mandate for de novo review is somehow inappropriate. From the ACS post:
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.
Ah, the "judicial independence" clause. What? There is, among others, FRCP 53, 72, and the bankruptcy rules, all of which control the court's review of other courts' decisions. So that doesn't work.

To be sure, the ACSBlog post makes a couple good points. The congressional subpoena that I wrote about here, is surely an abuse of legislative power.

But, some advice to my friends on the left: Don't assume that the fact that a statute is bad policy makes it necessarily unconstitutional. Because if you're bent on covering everything under the "perfect Constitution," you're going to make some bad arguments.


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