“BIRCH, Circuit Judge, specially concurring: I concur in the denial of rehearing en banc in this case because any further action by our court or the district court, would be improper, as I explain below.An axiom in the study of law is that “hard facts make bad law.” The tragic events that have afflicted Mrs. Schiavo and that have been compounded by the resulting passionate inter-family struggle and media focus certainly qualify as“hard facts.” And, while the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty.A popular epithet directed by some members of society, including somemembers of Congress, toward the judiciary involves the denunciation of “activist judges.” Generally, the definition of an “activist judge” is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution. In resolving the Schiavo controversy it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people —our Constitution. “
The good judge then writes a section entitled Pub. L. 109-3 and the Separation of Powers. Judge Branch gives a textbook recitation of applicable case law that the other 2 branches of government (read DeLay and Bushs et. al.) should read pronto before they take off on another such mis-adventure again.The Judge concludes with the following:
“By arrogating vital judicial functions to itself in the passage of the provisions of Section 2 of the Act, Congress violated core constitutional separation principles, it prescribed a “rule of decision” and acted unconstitutionally.”
Yes!!!!! Take that boys!!!