We've got a live one I report, you decide

In his concurring opinion for today's judgment denying an en banc rehearing of the amended Schiavo claims, Judge Stanley F. Birch challenges the constitutionality of Public Law 109-3, Terri's Law. He argues that it violates the structural constitutional requirement of separation of powers. Now, I'm sure I wasn't the only person who this occurred to when I first heard that Congress was going to pass a law because they wouldn't accept the results of the Florida court proceedings. But it's hard to argue that the constitution prohibits Congress's grant of Jurisdiction when it's specifically authorized to grant jurisdiction to inferior federal courts.

Cleverly, Birch argues that the grant of jurisdiction by itself would have been fine, but the four parts of the law which require the Court to ignore previous state court judgments make the whole thing unconstitutional. In the first part he cites to a concurring opinion in INS v. Chadha which cites to the Federalist Papers for the proposition that the Framers enshrined in the constitution separation of powers principles because of past legislative interference with the judiciary and their desire to avoid it in the future. Then he argues the following: The Supreme Court held in the 1871 case of United States v. Klein that Congress couldn't legislate the rule of decision for a particular case. Terri's law set the standard of review for a particular case, as well as denying the applicability use of several other judicial doctrines to that case. The standard of review often determines the rule of decision and the 11th Circuit had held last year in Florida Progress Corporation v. Commissioner that the standard of review is for the court to decide. He then discusses other ways in which "Congress direct[s] what particular steps shall be taken in the progress of a judicial inquiry," which was held to be unconstitutional in the Plaut case.

In his second section he argues that the unconstitutional part of the act isn't severable from the constitutional grant of jurisdiction because severability isn't applicable if the severed statute wouldn't operate in the manner intended by Congress. This section is remarkably unpersuasive, since it assumes that given a choice between passing no law at all and one which only granted jurisdiction without any other changes, Congress would have chosen no law at all.

In case anyone is wondering, I don't know anything about any of the cited cases and am simply summarizing Birch's argument.