Congress acted unconstitutionally according to Birch in his opinion

[thedevilinthedetails]

http://www.ca11.uscourts.gov/opinions/ops/200511628reh2.pdf

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.

Basically the 11th Circuit Court of Appeals said that while it was constitutional for Congress to grant jurisdiction of the case back to the Federal Courts, it was inconsistent with the Sepeartion of Powers clause for Congress (in Section 2 of Pub. L 109-3) to tell the Federal Court exactly how it should do it's job.

So, surprise, surprise, the Republican controlled Congress, Senate and Executive Office all were trying to do something very very very illegal.

This ought to be interesting to see how this plays out now. It's not the first time it's happened of course, but this seems to be pretty blatant.

[gasperc]

1. oh shit this is rather big, I'm sure KOS and Billmon will post

extensively on this point

[merh]

2. I've been saying that since day 1 - before the friggin resolution.

Wish my dem leaders had stood up and said this too! :banghead:

(Some did, others were absent and others voted for the damned resolution!)

[Nicholas D Wolfwood]

4. I'm glad they didn't.

Because instead of us looking like "murderers" (and you know we would), they get denied anyway and we still look good.

[merh]

8. Only by the crazy fundies, the other 75% to 80% of the people that

believe the resolution is over reaching by the federal government would have applauded them and would think "Wow, dems have spine!"

[Nicholas D Wolfwood]

9. I think you misunderestimate the media.

Christ, I can see the headlines with doctored photos of Howard Dean with blood dripping from his mouth now...

[merh]

10. The media has been playing this and the fundie spin for all it is worth

and the majority of the people still HATE WHAT CONGRESS DID and think they should leave Terri alone. The repukes peeed in their wheaties and the dems are asleep and have let us down and have turned their backs on the constitution!

Power of the media my ass, they have been caught in their own pitard and are still trying to figure out how to go.

EDITED TO ADD LINK:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x3388561

[Nicholas D Wolfwood]

3. I'm getting sick of this pattern

Rethugs violate Constitution
Courts rebuff their pissing on the Constitution
Rethugs cry "JUDICIAL ACTIVISM!! WAAAAAAAAH!"

Try not violating the supreme law of the land in the first place and you won't have to worry about the mean ol' judges.

[Walt Starr]

5. Actually, that's not true. THE COURT DID NOT DECLARE IT UNCONSTITUTIONAL!!

The language which states that the Congress and Executive branches acted outside constitutional bounds was a special concurring opinion written by Birch. That language stands on its own and cannot be considered an actual ruling as it is not stated specifically in the opinion.

The law still stands as such, but Congress and the Executive branch have been put on notice that such legislation in the future could easily be ruled unconstitutional.

[thedevilinthedetails]

7. Walt, I'm not a lawyer and I don't exactly understand your point

I concede I am not an expert in reading legal opinions or rulings. Are you just saying that 11th Circuit Court of Appeals just issued an opinion that PL109 was unconstitutional?

My reading of this passage seems to make it clear that they are not taking the Shiavo case BECAUSE it is unconstitutional. Is that not the same thing?

14
C. Conclusion
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.” INS, 462 U.S. at 951, 103 S. Ct. at 2784. 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. If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow. See New York, 505 U.S. at 187, 112 S. Ct. at 2434. 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. Realizing this duty, I conclude that Pub. L. 109-3 is an unconstitutional infringement on core tenets underlying our constitutional system. Had Congress or the Florida legislature, in their legislative capacities, been able to constitutionally amend applicable law, we would have been constrained to apply that law. See Robertson v. Seattle Audobon Soc’y, 503 U.S. 429, 441, 112 S. Ct. 1407, 1414 (1992). By opting to pass Pub. L. 109-3 instead, however, Congress chose to overstep constitutional boundaries into the province of the judiciary. Such an Act cannot be countenanced. Moreover, we are bound by the Rooker-Feldman doctrine not to exercise any other jurisdictional bases to override a final state judgment. Should the citizens of Florida determine that its law should be changed, it should be done legislatively. Were the courts to change the law, as the petitioners and Congress invite us to do, an “activist judge” criticism would be valid.

[Walt Starr]

11. That is section C of a Special Concurring Opinion by Birch

It is not binding, nor does it express the sense of the Court. The Court simply denied the request. Read on and you'll find the dissenting opinion of Tjoflat and Wilson as well as an answer to that dissenting opinion from Carnes and Hull which cites the opinion of Birch.

The special concurring opinion by Birch DOES NOT overturn Pub. L. 109-3.

It does, however, build the case for overturning Pub. L. 109-3 and puts Congress on notice that there is plenty of case law and precedence to back up the argument that such legislation must be considered a violation of the Seperation of Powers in the constitution. If you read Birch's entire opinion you will see that the only way to get around that seperation of powers would be to overturn Marbury v. Madison.

[katsy]

15. Re: Marbury

If they overturn Marbury, how would it affect corporate personhood?

[Walt Starr]

18. IF they overturned Marbury

It would affect all case law since 1803. Marbury establishes the precedent that the ultimate arbiter of constitutionality is the Supreme Court.

In effect, if Marbury was overturned, The Supreme Court would nullify it's power to declare anything unconstitutional.

[katsy]

19. Thanks WS. eom

[thedevilinthedetails]

16. I guess I got a little ahead of myself!

Glad to see that you think it does build a pretty strong case for overturning Pub. L. 109-3.

He also does a good job of blasting those who use the term "activist judges" when it's convenient

Thanks for the clarification

[rodeodance]

12. BIRCH, Circuit Judge, specially concurring:...March 30th

Well, as someone said about, Birch (a Republican Judge) put the Congress and the WH on notice!!

BIRCH, Circuit Judge, specially concurring:
I concur in the denial of rehearing en banc in this case because any further
action by our court or the district court, would be improper, as I explain below.
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.

[Freedom_from_Chains]

6. This is great news

One of the things I have been concerned about is that the issue of the Constitutionality of how the Congress acted would get swept under the rug when Terri dies. I want to see this at the forefront of the future debates about this case.

[rodeodance]

14. Those far Right Congresspeople are like wounded animals now--so

beware. They do not take losing easily. There will payback -that I am sure of!!

[Freedom_from_Chains]

17. Politics can be brutal

And the current majority party is very aggressive at it. So therefore, if our rights are to be protected, the opposing party needs to be just as aggressive. Keep in mind what politics really is. It is just a system of civilized warfare that we have created so that the battlefield can be kept inside. It is the institution we have created as an alternative to arming ourselves and settling our disputes in the street.

[sharonking21]

21. I couldn't agree more . .

And let no one here think that most of our legislative Democrats were not a part of the problem.

See my posts at:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=1686720&mesg_id=1689356

http://www.dailykos.com/comments/2005/3/20/232937/535/141#141

http://www.dailykos.com/comments/2005/3/29/152614/068/90#90

[derby378]

13. Broadband this mutha like it ain't no thang!!! (n/t)

[Freedom_from_Chains]

20. I've had a little more time to read the opnion

and man have they pissed this guy off. This court is clearly stating that they have heard enough of these peoples crap.