Daily Kos

Schiavo's Law is not a Bill of Attainder

by Edge

Mon Mar 21, 2005 at 12:10:34 AM PDT

Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils.  They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.

James Madison, Federalist Number 44, 1788.

While this statement certainly applies to this increasingly sickening spectacle, what Congress did just a few hours ago is not unconstitutional for being a bill of attainder.  Whether its actions are unconstitutional under general principles of federalism is another story for another diary (and another diarist).

AN ACT

For the relief of the parents of Theresa Marie Schiavo.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

    The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.

    Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

SEC. 3. RELIEF.

    After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

While this certainly fits the traditional definition of a bill of attainder, that is, a law that only applies to a specific individual or individuals, under relevant case law, it is not a bill of attainder.

The most recent pronouncement of the Supreme Court appears to be a 1984 case titled Selective Service v. Minnesota PIRG, 468 U.S. 841.  As the Court noted, in an opinion by Chief Justice Burger, "the draftsmen of the Constitution sought to prohibit the ancient practice of the Parliament in England of punishing without trial 'specifically designated persons or groups.'"  Without going into more detail, the gist of the matter is that bills of attainder must inflict punishment of some sort on the affected person or persons - a level to which this abominable legislation does not reach.

So, continue attacking Congress on Monday for their incredible actions, and remind everyone who will listen that George Bush and the GOP care not one whit for Terry Schiavo, her husband, or her parents, but only, as with everything else they do, for power, the continuation of power, and the consolidation of power.

So much for "limited government" and "state's rights."

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Permalink | 23 comments

  •  It would be nice (none / 0)

    if, rather than simply stating your opinion, you could address Armando's specific assertion: the bill has the effect of denying the husband's right of Res Judicata.

    Come see TV from the reality-based community at RealityBasedTV.com

    by MarkInSanFran on Mon Mar 21, 2005 at 12:16:32 AM PDT

  •  How is this not punishing Terry/Husband? (none / 0)

    We have a person who has requested the right-to-die.  They have gone through all proper legal channels for that right, it has been granted, by the law, and they have reached final adjudication.  Now, that benefit and right conveyed to them by a Florida court, has been revoked by Congress.

    How is this not singling out Terry/Husband for punishment by revoking their right to relief as already adjudicated and forcing them to re-try this entire fiasco?

    Stephanie Dray
    of Jousting for Justice, a lefty blog with a Maryland tilt.

    by stephdray on Mon Mar 21, 2005 at 12:20:18 AM PDT

    •  Careful. (none / 1)

      This is the exact argument that people who dislike the extra review given death row defendants when they could potentially have tried both state and federal collateral habeas procedures as well as direct appeals.

      Sure it "punishes" him, but that's not what we mean exactly.

      If it had said

      SECTION 1. Off with the husband's head.
      SECTION 2. The Courts of the United States shall not have jurisdiction to hear any matter connected herewith.

      ...or something like that, that's a bill of attainder.

      by Attorney at Arms on Mon Mar 21, 2005 at 12:58:18 AM PDT

      [ Parent ]

  •  The diarist is correct. (none / 1)

    Plus, a bill of attainder was generally used as a form of criminal punishment.

    All this law does is extend jurisdiction of the federal courts to hear this particular matter--an exemption no different or arbitrary than the dollar amount limits on other cases before federal jurisdiction.

    As for res judicata, this is basically a grant of a de novo procedure. It is not a constitutional precept as criminal double jeopardy is.

    The problem here is not res judicata but standing. Remember, the Newdow/pledge case was dismissed because the father wasn't the guardian?

    Standing is a constitutional requirement of Article III.

    It's not a bill of attainder. Congress passes special legislation all the time, granting citizenships, commissions--is it a bill of attainder when they confirm the attorney general? Just because the law only applies to one person doesn't make it a bill of attainder, and just because one court has decided something doesn't mean that res judicata closes the door for ever.

    by Attorney at Arms on Mon Mar 21, 2005 at 12:54:45 AM PDT

    •  Thank you (none / 0)

      That was the assertion - the Court has held criminal punishment to be a prerequisite to an attainder finding.

      "[T]he Bill of Attainder Clause was not to be given a narrow historical reading ... but was instead to be read in light of the evil the Framers had sought to bar: legislative punishment, of any form or severity, of specifically designated persons or groups." U.S v. Brown, 381 U.S. 437 (1965)

      Whether or not this works a civil double jeopardy on Michael Schiavo is another issue; the federalism concerns are also another issue.  Res judicata is a fancy phrase, but it has nothing to do with the bill of attainder issue; which is all I presumed to address.

      My only point with this diary was that non-lawyers throwing around the attainder phrase are mistaken.
      I don't think I have fallen for any effect, and I'm not posting my opinion - I am trying to explain what the law is.

      by Edge on Mon Mar 21, 2005 at 01:01:17 AM PDT

      [ Parent ]

    •  Nope (none / 0)

      Again, see the 2nd Circuit case from 2002.

      The right to assert res judicata has been deprived - that is "punishment" against specified individuals in a law.

      A bill of attainder.

      Everybody dies alone.

      by Armando on Mon Mar 21, 2005 at 09:14:26 AM PDT

      [ Parent ]

  •  Finally (none / 0)

    Hey, where were all you guys when I, a mere tax lawyer, was trying to make this argument to Armando yesterday!!!!! Glad to have the research.

    There's no easy way out here - the public needs to understand how horrific what Congress has done is, without the "quick fix" of its being an unconstitutional bill of attainder.  Of course, there may well be other grounds for unconstitutionality.

    by geordie on Mon Mar 21, 2005 at 06:10:25 AM PDT

    •  Nope (none / 0)

      I suggest you allread the 2nd Circuit's most recent decision on bills of attainder from 2002.

      It discusses the concept of punishment quite well.

      This is a bill of attainder - it punishes specific parties by name by prohibiting their exercise of the defense of res judicata.

      The reading by you and the diarist is too narrow.

      Indeed, I think the bill of attainder argument is very compelling and the Nixon case does not seem on point to me.

      Everybody dies alone.

      by Armando on Mon Mar 21, 2005 at 09:12:59 AM PDT

      [ Parent ]

  •  You misstate (none / 0)

    the test for determining "punishment" for bill of attainder purposes. Simply put, you are wrong in your analysis because you  are to superficial. There is a test for determining whether soemthing is "punishment"  for bill of attainer purposes.

    In short, to follow your lead, it is a highly case specific inquiry and does not require some intensity of "punishment" as you describe it.  

    Everybody dies alone.

    by Armando on Mon Mar 21, 2005 at 09:25:34 AM PDT

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