http://www.ca11.uscourts.gov/opinions/ops/200511628reh2.pdf

[Douglas Laycock]

        Judge Birch's opinion states the ground on which I believed from
the beginning that the Act was unconstitutional.  Of course Judge
Tjoflat is right that Congress can legislate about preclusion,
abstention, or Rooker-Feldman.  But the Act does not purport to change
the law on any of those points; it simply directs the federal courts to
ignore those bodies of law in this case.  That is, it directs the courts
to reach a particular result in a particular case (not on the ultimate
issues in the case, but on potentially dispositive issues in the case),
without changing the underlying law.  The Court said this was
unconstitutional in Klein v. United States, which Judge Birch cites.  He
does have precedent.  When Congress directs an outcome in a particualar
case, it is acting as a court, deciding that case, instead of acting as
a legislature, enacting general law.

    But, as I said to the press, the Court has been very deferential to
Congress on what counts as changing the underlying law.  Klein was
decided just after the Civil War, and so far as I am aware, no
subsequent case in the Supreme Court has ever found another Klein
violation.  Robertson v. Seattle Audubon, which Judge Birch
distinguishes in conclusory fashion, involved a statute that said no
more environmental review was required in a particular spotted owl
dispute.  The Court viewed that as changing the applicable environmental
law and not as directing an outcome in a particular case.  The historic
bookend to Klein is Wheeling Bridge, decided before the Civil War, in
which Congress authorized a bridge across the Ohio that the Supreme
Court had previously enjoined as a nuisance.

    Even closer to Schiavo is United States v. Sioux Nation in 1980, in
which Congress told the courts to relitigate a damage claim without
regard to any preclusive effect of the earlier judgment  But that was a
suit against the United States, and the Court viewed it as Congress
simply waiving a defense.  Rehnquist wrote a vigorous dissent asserting
a Klein violation.  Seattle Audubon involved federal management of
federal land, and petitioner Robertson was a federal official.  But the
Court did not rely on that, and in Klein, the Court viewed such facts as
cutting the other way -- Congress was trying to direct that the suit be
resolved in favor of the government.

    Maybe the Schindlers could have successfully argued that the Act
enacted a narrow change in the law of preclusion, finality, and
Rooker-Feldman.  But this statute goes out of its way to say it is no
precedent for any other case; it affects only this one case; the
statutory language does not purport to change the law, even narrowly and
temporarily; it purports to give instructions to the federal district
court.  And there is no other federal involvement in the case as there
was in Sioux Nation and even Seattle Audubon.  If this Act does not
violate Klein, then Klein is confined to its facts, which were that
Congress had no power to change the relevant substantive law.  Congress
had tried to change the effect of a Presidential pardon.  Viewed as an
amendment to substantive law, it interfered with the pardon power;
viewed as a directive to decide the case despite the substantive law, it
interfered with the judicial power.    
 
    I got into these issues because Chris Eisgruber and my colleague
Larry Sager kept arguing that the Religious Freedom Restoration Act
violated Klein.  With all respect to those distinguished scholars, I
always thought that argument was frivolous, as Seattle Audubon surely
makes clear.  RFRA created a broadly applicable statutory right and said
nothing about how courts should decide constitutional cases.  The
Supreme Court and Courts of Appeals also rejected a number of Klein
objections to the Prison Litigation Reform Act.  But if the Schiavo Act
is not a violation, then Klein is exceedingly hard to violate.
 
    I briefly discuss these cases in Federalism as a Structural Threat
to Liberty, 22 Harv. J.L. & Pub Pol'y 67, 77-80 (1998).  Larry Sager
offers his more expansive view of Klein in id. at 89 and in Klein's
First Principle:  A Proposed Solution, 86 Geo. L.J. 2525 (1998).




Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)


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