Academic journal article Constitutional Commentary

Schiavo and Klein

Academic journal article Constitutional Commentary

Schiavo and Klein

Article excerpt

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 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.


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. …

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