I just read the Schindler's federal complaint and I consider it the best evidence that the travesty enacted by the Congress last night is a Bill of Attainder. Why do I say this?
First, the Complaint states a run of the mill Section 1983 civil rights claim against Judge Greer and against Michael Schiavo (presumably the allegation is that Michael Schiavo is a State actor due to his appontment as Guardian Ad Litum - I have no idea whether that is an acceptable pleading or not) alleging violations of the Theresa Schiavo's First Amendment free exercise rights and that Judge Greer violated Terri Schiavo's right to due process guaranteed by the 14th Amendment to the Constitution.
What is striking about this? The claims themselves required no Act of Congress - Terri Schiavo could have asserted these claims without this new law. The fact is the law confers no new rights on Terri Schiavo. So why have the law then? Ahh, I'm glad you asked - the law conferred new rights on the SCHINDLERS, that of being able to act for their daughter in this suit.
Who was deprived of that right? Michael Schiavo. Thus, the legislation REVERSED the state court decisions on THAT issue. My understanding is that that issue was appealed to the Supreme Court of the United States which denied certiorari.
More on the flip
Second, by the new law, Congress stripped Michael Schiavo of the defense of res judicata on that issue as well, as all factual and legal findings of the previous state court decisions. Thus, again, the law deprived a specific individual, Michael Schiavo, of certain rights, the right of claiming res judicata.
Third, the law deprived Michael Schiavo of other defenses, the invocation of the abstention doctrine, among others.
Follow this carefully, the law deprived Michael Schiavo of (1) his status as Guardian Ad Litum for Terri Schiavo, contravening a final court judgment; (2) The right to assert res judicata; and (3) the right to assert the abstention doctrine.
What did it grant the Schindlers? Michael Schiavo's role as Guardian Ad Litum and freedom from dispositve defenses Michael Schiavo would raise. It grants NO rights independent of Michael Schiavo.
What is "Punishment" under Bill of Attainder Analysis?
To invalidate legislation as a bill of attainder, the Bill of Attainder Clause "requires not merely 'singling out' but also punishment." Plaut, 514 U.S. at 239 n. 9, 115 S.Ct. 1447; accord Nixon, 433 U.S. at 471-72 & n. 33, 97 S.Ct. 2777 *350 (holding that "the Act's specificity--the fact that it refers to appellant by name--does not automatically offend the Bill of Attainder Clause"). A legislature may legitimately create a "class of one" for many purposes, see, e.g., Nixon, 433 U.S. at 472-73, 97 S.Ct. 2777, but not for punishment. . . . The Supreme Court articulated three factors to guide a court's determination of whether a statute directed at a named or readily identifiable party is punitive: "(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, 'viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes'; and (3) whether the legislative record 'evinces a [legislative] intent to punish.' " Selective Serv. Sys., 468 U.S. at 852, 104 S.Ct. 3348 (quoting Nixon, 433 U.S. at 473, 475-76, 478, 97 S.Ct. 2777). Nixon makes it clear that a statute need not fit all three factors to be considered a bill of attainder; rather, those factors are the evidence that is weighed together in resolving a bill of attainder claim. Nixon, 433 U.S. at 473-78, 97 S.Ct. 2777. The party challenging the statute has the burden of "establish[ing] that the legislature's action constituted punishment and not merely the legitimate regulation of conduct." Id. at 476 n. 40, 97 S.Ct. 2777. Unfortunately, because the Supreme Court's bill of attainder jurisprudence is limited, it provides us with little guidance for determining whether a statute is impermissibly punitive.
. . . A statute need not fit within the historical category of punishment to be considered such. Such a rule would render the Clauses unable to respond to attempts by contemporary legislatures to punish individuals in new and heretofore unforeseen ways. See Nixon, 433 U.S. at 475, 97 S.Ct. 2777.
. . . The second component of the Supreme Court's test is "functional," looking to whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.... Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers. Id.; see also Flemming, 363 U.S. at 615, 80 S.Ct. 1367 (describing "inability to discern any alternative [nonpunitive] purpose which the statute could be thought to serve" as a basis for finding a statute to be punitive) (citing Trop v. Dulles, 356 U.S. 86, 97, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)); Brown, 381 U.S. at 476, 85 S.Ct. 1707 (White, J., dissenting) ("The imposition of a particularly harsh deprivation without any discernible legitimate legislative purpose has ... been characterized as penal.").
. . . Finally, we look to see whether the legislative history evinces a legislative intent to punish. See Selective Serv. Sys., 468 U.S. at 852, 104 S.Ct. 3348 (citing Nixon, 433 U.S. at 478, 97 S.Ct. 2777); Brown, 381 U.S. at 476, 85 S.Ct. 1707 (White, J., dissenting).
Apply the test yourselves -
(1) Is this historical punishment? Not really. It is without precedent.
(2) Does it further non-punitive legislative goals? I think it is clear that it does not. The Congress' only intent is to deprive Michael Schiavo of his rights as Guardian Ad Litum and his right to assert certain dispositive defenses. Is keeping Terry Schiavo alive a legititimate legislative goal? No, it is not here given the findings of the State Court on Terri's wishes. Cruzan teaches us this. The ONLY thing this law does is take away rights from Michael Schiavo.
(3) Does the legislative history evince an intent to punish? Unmistakably it does. The only purpose of the law is to deprive Michael Schiavo of rights and bestow them on the Schindlers.
Remember, "A statute need not fit within the historical category of punishment to be considered such. Such a rule would render the Clauses unable to respond to attempts by contemporary legislatures to punish individuals in new and heretofore unforeseen ways. See Nixon, 433 U.S. at 475, 97 S.Ct. 2777."
My conclusion? The law is a Bill of Attainder.