Once again (big surprise), the full Eleventh Circuit Court of Appeals has refused to rehear the Schiavo case. (Give up, already! Let her go in peace.) One of the judges on the Eleventh Circuit, Judge Birch, wrote a concurring (and therefore not legally binding) opinion arguing that the law passed by Congress that sent the case to federal court is in fact unconstitutional, just as Matt P. said.

Here is the relevant excerpt:

If the Act only provided for jurisdiction consistent with Article III and 28 U.S.C. § 1331, the Act would not be in violation of the principles of separation of powers. The Act, however, goes further. 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.

A dissenting judge disagrees, but this sounds correct to me.

Judge Birch also takes a nice dig at people who talk about “activist judges”:

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.

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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.