Schiavo and Klein.

• Author: Caminker, Evan
• Position: Separation of powers

When teaching federal courts, I sometimes find that students are slow to care about legal issues that initially seem picayune, hyper-technical, and unrelated to real-world concerns. It takes hard work to engage students in discussion of United States v. Klein, (1) notwithstanding its apparent articulation of a foundational separation of powers principle that Congress may not dictate a "rule of decision" governing a case in federal court. (2) A Civil War-era decision about the distribution of war spoils, one the Supreme Court has hardly ever cited since and then only to distinguish it, in cases involving takings and spotted owls? Yawn.

I've tried in the past to grab students' attention by conjuring up far-fetched hypotheticals designed to make something unassailably significant turn on whether a statute dictates a rule of decision in violation of Klein. I can now rest my imagination; Schiavo v. Schiavo presents the issue in a life-or-death scenario.

And life-or-death describes not just the stakes for Terri Schiavo herself, but also for the traditional understanding of Klein. In this brief essay I explain why, if the federal statute in question doesn't violate Klein by impermissibly dictating to the federal courts a rule of decision, then Klein must be virtually impossible to violate.

I

I will not belabor here the background or resolution of the Schiavo litigation; they are well known and discussed in some detail in other contributions to this symposium. It is sufficient for my purposes to state the following. Terri Schiavo required a feeding tube after a medical incident left her in a permanent vegetative state. (3) Her family disagreed as to whether this form of life support should be terminated, with ex-husband Michael Schiavo favoring termination and parents Robert and Mary Schindler favoring continuation. (4) The issue was brought to the state courts of Florida and, in many proceedings spanning many years, a final state judgment emerged to authorize the withdrawal of Terri's feeding tube. (5)

But Congress had other ideas. After heated debate capturing national attention, Congress decided that Terri's parents ought to have another opportunity to make their case--this time in federal court. Congress passed "An Act for the Relief of the Parents of Theresa Marie Schiavo" (the "Schiavo Relief Act") designed to let the parents file a federal lawsuit to mandate continued tube feeding wholly unencumbered by their loss in the state court proceedings. (6) Terri's parents did indeed file such a lawsuit, but the suit was unsuccessful. (7) Terri's feeding tube was ultimately removed, and she eventually passed away.

For purposes of this litigation, federal courts generally assumed the constitutionality of the Schiavo Relief Act. Judge Birch of the United States Court of Appeals for the Eleventh Circuit, however, concurred in a denial of rehearing en banc on the ground that the Act violated the separation of powers. (8) Perhaps because of the frenetic pace of the litigation, Judge Birch's opinion did not emerge as a model of clarity. Citing Klein as well as other separation of powers cases, Judge Birch concluded that the Act "invades the province of the judiciary" (9) because it "attempt[s] to 'direct[] what particular steps shall be taken in the progress of a judicial inquiry."' (10) Judge Birch's precise reasoning leading to this conclusion is not entirely clear. (11) But in my view he is on to something that can, in fact, be spelled out in quite simple and straightforward terms.

II

In Klein, the Supreme Court invalidated a congressional statute for transgressing the boundary between legislative and judicial power. (12) The plaintiff in Klein, the executor of the estate of a Confederate supporter, sought to recover the value of the decedent's cotton, which was seized by treasury agents of the United States during the Civil War. (13) The executor brought suit under the Abandoned and Captured Property Act, which authorized noncombatant confederate landowners to recover seized property upon proof of loyalty to the federal government. (14) While in fact the landowner had been disloyal, he had previously received a Presidential pardon by taking an oath to support the Constitution and the union of the states. In United States v. Padelford, the Supreme Court had held that a Presidential pardon would suffice as proof of "loyalty" for purposes of the seizure statute. (15) Based on the pardon, the court of claims in the Klein proceedings awarded the landowner recovery. (16) But pending the government's appeal from that decision, Congress passed an appropriations proviso declaring that pardons were inadmissible as proof of loyalty to the federal government and that acceptance of a pardon, under most circumstances, was conclusive evidence of disloyalty requiring dismissal of the suit. (17) The proviso further directed the Supreme Court to dismiss any case in which a claimant had prevailed in the court of claims if the claimant prevailed upon proof of loyalty by Presidential pardon. (18)

In Klein, the Supreme Court recognized that the "great and controlling purpose [of the proviso] is to deny to pardons granted by the President the effect which this court had adjudged them to have [in Padelford]." (19) As such, the proviso violated separation of powers principles on two independent grounds. First, the proviso "passed the limit which separates the legislative from the judicial power." (20) As the Court explained, the proviso dictated the outcome of federal adjudication "solely on the application of a rule of decision, in causes pending, prescribed by Congress." (21) This, the Court held, Congress could not do:

It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power. The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? In the case before us, the Court of Claims has rendered judgment for the claimant and an appeal has been taken to this court. We are directed to dismiss the appeal, if we find that the judgment must be affirmed, because of a pardon granted to the intestate of the claimants. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it? We think not.... (22) To clarify its ruling the Court distinguished its previous decision in Pennsylvania v. Wheeling and Belmont Bridge Co., (23) in which the Court held that Congress could change the outcome of a dispute by enacting new legislation changing the substantive law applicable to that dispute. (24) The two differed in a critical aspect: "No arbitrary rule of decision was prescribed in [Wheeling Bridge], but the court was left to apply its ordinary rules to the new circumstances created by the act. In [Klein], no new circumstances ha[d] been created by legislation." (25)

After concluding that the proviso governing the evidentiary significance of pardons infringed upon the judicial power, the Klein Court went on to determine that "[t]he rule prescribed is also liable to just exception as impairing the effect of a pardon, and thus infringing the constitutional power of the Executive" (26) because it purported to affix the meaning of a presidential pardon in a manner contrary to the intention of the issuing President. Some, perhaps unsure of the footing of the judicial power analysis, have suggested Klein is best understood as hinging on this executive power infringement claim. (27) But the structure and language of the Court's opinion make clear that the two separation of powers principles discussed in Klein operate in the disjunctive: The proviso governing pardons was unconstitutional because it independently transgressed the judicial and "also" the executive power.

Since Klein was decided, the Court and most federal courts scholars have taken its seemingly central language concerning the line between legislative and judicial power at face value: Congress may not "prescribe rules of decision to the Judicial Department of the government in cases pending before it." (28) While Congress can of course add to or modify the substance of the law (within its limited constitutional authority) and thereby influence the outcome of litigation interpreting and applying that law, Congress may not leave the law unchanged but simply order the courts to decide a specific case under that preexisting law in a particular manner.

III

The Schiavo Relief Act states very clearly that it does not add to or modify the substance of any federal law claims that Terri might have against any of the authorized defendants. (29) Nor does the Act tell courts how to address or resolve any such substantive claims. At first glance, therefore, the Act does not seem to tell federal courts how any cases should be decided.

But let's take a closer look at what the Act does do. Section I simply grants federal jurisdiction over the case. (30) In fact, for these purposes Section I is redundant with the basic grant of jurisdiction in 28 U.S.C. [section] 1331, which already grants jurisdiction for claimed violations of federal constitutional or statutory law. (31) In effect, then, Section I is essentially a redundant predicate to the real operative provisions of the Schiavo Relief Act, which follow in Section II entitled "Procedure." Section II states as follows:

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life...