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Washington-Suppose XYZ Corp. Inc. gets slapped with a $1 billion punitive damages award in Mad-As-Hell, Montana, then appeals the judgment through the state courts, loses, and unsuccessfully seeks review in the U.S. Supreme Court. Congressional leaders and the president, concerned about this consistently generous campaign contributor, push through legislation giving federal courts jurisdiction to hear the corporation’s claim without regard to the state court proceedings. Inconceivable? Not after enactment last week of the federal law giving federal courts jurisdiction to hear the claims of the parents of Terri Schiavo, the Florida woman over whom a life-or-death battle has been fought for years. Unconstitutional? Well, as with much in the law, it depends. Or, suppose a custody battle between divorced parents explodes on the national scene because one parent has become involved in a homosexual relationship. Could Congress legislate in a way that takes this traditional state matter out of state courts with the result of awarding custody to the heterosexual parent? “I personally think sky’s the limit here,” said constitutional law scholar Mark Rahdert of Temple University James E. Beasley School of Law. “What you need is a case that’s appealing, possibly to the general public and certainly to a majority of members of Congress and the president, on some kind of relatively hot-button question, where a fair number of folks have reason to believe or feel the state courts made a mistake, and there’s some colorable federal due process or statutory claim.” Few congressional and legal experts last week believed Congress would be bound by language in the Schiavo law stating that it would not “constitute a precedent with respect to future legislation.” Many see constitutional problems with this type of legislation. And others contend that it is part of two recent trends in the last four to five years involving court-stripping and the trampling of federalism. Not so private “Although for political reasons the Congress wrote this law technically not to be a private bill, it in fact is a private bill. It is only to govern a particular case,” said Charles Tiefer of the University of Baltimore School of Law, a former solicitor general to the U.S. House of Representatives. In the 20th century, private bills generally dealt with individuals who had money claims against the government or who needed special immigration status, explained Tiefer. The Schiavo law is “categorically different” from the private bills of the recent past, said Tiefer, author of the recently published book Veering Right. “On the other hand, it does resemble primitive legislative acts, such as when Parliament in the 19th century would pass bills of divorce for individuals, or before the Constitution outlawed it, the legislature would pass bills of attainder for individuals,” he said. “I see [the Schiavo law] as throwing the door open to a new version of that primitive matter of the legislature intervening in and deciding individual cases for political reasons,” he added. “I don’t see it as limited to what are called end-of-life cases.” The tricky part, he and other scholars agreed, is ensuring the constitutionality of this new type of private bill. In the Schiavo situation, Congress had the authority to confer jurisdiction over the federal claims, said Michael Dorf, vice dean of Columbia Law School. “I think the bigger question is whether Congress can instruct a federal court to disregard prior procedures in a state court,” he added. “That’s got two aspects: a federalism aspect and a separation-of-powers aspect.” On the federalism end, Dorf said, he believes there is no precedent for giving federal courts the power to review factual findings by state courts as if they haven’t been made. “Where does Congress get authority to authorize de novo review of factual findings?” asked Dorf. “I think the answer is, we don’t know. My own suspicion, even though I don’t like what they have done, is they can do it. They can prescribe a standard of review.” The separation-of-powers issue, he said, arises because the legislation is a type of private bill. While being a private bill doesn’t make it unconstitutional, Dorf said, “The harder question is whether it runs afoul of a line of cases going back to U.S. v. Klein [13 Wall. 128 (1872)], a Reconstruction-era case that said Congress can’t, by an act, change the result of a final judgment.” That holding was reaffirmed in Plaut v. Spendthrift Farm, 514 U.S. 211 (1995), he said, adding, “I think Congress was probably cognizant of Plaut in not prescribing a result but merely authorizing new litigation. But I think this is close to Plaut.” Close, indeed, agreed Richard Saphire of the University of Dayton School of Law. The Schiavo law, he said, does away with such traditional doctrines as federal collateral estoppel, res judicata and abstention, all in a way that looks like judicial “stacking the deck” to get a particular result. Temple’s Rahdert also sees an equal protection problem with respect to Schiavo, who, he said, is trying to exercise a constitutional right to refuse treatment. “Congress is saying everybody else who exercises that right only has to go through one layer of litigation, but she has to go through an extra layer,” Rahdert said. “And finally, is that a denial of her right to refuse treatment?” Larger debate The congressional action last week was part of the larger and long-standing debate over death and dying and the relationship between the federal government and the states, said Marc Spindelman of Ohio State University Michael E. Moritz College of Law. Spindelman sees a strong connection between the Schiavo law and the Bush administration’s-in particular, former Attorney General John Ashcroft-intervention to challenge Oregon’s assisted suicide law, a challenge now before the U.S. Supreme Court. “On this level, it looks as though the candid admission of some House Republicans that where so-called right to life is at stake, principles of federalism and structural commitments embodied in the Constitution can go to hell is the motivating force,” he said. “The precedent could have been seen to have been set by Attorney General Ashcroft-when you have a substantive commitment, you go for it,” he said. Ilya Somin of George Mason University School of Law sees other connections: enactment of the so-called “partial-birth abortion” law, the No Child Left Behind education law and the Bush administration’s challenge to Oregon’s assisted suicide law and to California’s medical marijuana law are part of a broader pattern where conservatives have been doing the kind of things liberals were more likely to do in the past-”trampling on federalism,” he said. “Basically, what we’re seeing here is when a party controls the federal government, they have strong political incentives to use that power to undercut policies that run counter to their agenda,” he said. “Certainly, gay marriage and assisted suicide are examples. To the extent they can do it politically, I expect they will.” Whack a court From where he sits, the Schiavo law is the most visible example of court-stripping in recent years, said Bert Brandenburg, executive director of Justice at Stake, a nonpartisan group working to keep politics out of the courts. “It looks a lot like ‘whack a court’-if you don’t like the decision, you write a law to try to change it,” he said. “This statute could well have a crystallizing effect in terms of channeling anger toward individual court decisions into legislative pressure to undo them. That threatens the independence of the courts.” Before the Schiavo law, he noted, the most recent example of court-stripping was the new law removing class action litigation from state to federal courts. The Schiavo law is like court-stripping “because it derives its strength from denouncing what judges do,” said Baltimore’s Tiefer. “Now they’ve taken a step, they’ll go much further than in the past if there’s a high-profile case. I think it’s going to happen.”

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