March 21, 2005

Bush v. Gore v. Schiavo

by Armen

Now that the President has signed the emergency legislation sent to him by Congress authorizing Federal Courts to look into the matter of Terri Schiavo's right to die, I'm wondering if any U.S. District Court can properly consider the matter without violating the Due Process Clause...especially in light of Bush v. Gore. I'm inclined to quote Chief Justice Marshall on this one.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on.

After more attentive consideration, Marshall gave us Marbury v. Madison.

March 21, 2005 03:10 AM | TrackBack

I bet this for sure gets Rehnquist back to the bench.

Posted by: Steve Brady at March 21, 2005 09:25 AM

I meant Equal Protection instead of Due Process...mea culpa.

And Rehnquist missed the SCOTUS X-mas party. I'm not sure that even a Habeas petition from Jesus would bring him back to the bench at this point.

Posted by: Armen at March 21, 2005 12:43 PM

I'm seeing a Willy Wonka Golden Ticket kinda scene, where he jumps out of bed and starts dancing around.

Posted by: Steve Brady at March 21, 2005 03:46 PM

As a jurisdictional matter, it seems odd to deny her the same federal-court review available to convicts sentenced to death, but on the particular facts of this case, I have to suspect that that review will not overturn the removal of the tube.

Posted by: Tom T. at March 21, 2005 07:12 PM

Why does it seem odd? The review of prisoners is based on the Writ of Habeas Corpus. Am I missing something or is this a private suit between two parties where Habeas is not involved?

Posted by: Armen at March 21, 2005 09:45 PM

That just begs the question. Congress has provided a statutory mechanism (28 USC sec. 2254) to implement the writ of habeas corpus and provide for federal review of death sentences (and other sentences) imposed by state courts on persons in state custody. Why should it not provide the same federal-review protections to a person in "a private suit between two parties" where that suit requests a state-court order to end the life of one of the parties? To put it another way, why should we trust the state court more when it issues a death warrant for Terry Schiavo than we do when it imposes a death sentence on a convicted criminal?

Posted by: Tom T. at March 22, 2005 12:25 AM

Tom T. you have it basically correct here. All the handwringing about states' rights and limitations on Congress from people who otherwise disdain state courts (esp. in death penalty cases) and who hated Lopez and Morrisson is really almost too much to bear. Why are they calling Republicans hypocrites rather than simply celebrating their (seeming) conversion to an expansive view of federal jurisdiction?

But actually, today's silly NYTimes and WaPo editorials notwithstanding, this bill gives a modest guarantee of a federal review with the District Court acting as an appellate court to review claims of federal right irrespective of whether they had been treated in the state court (hence "de novo"). But that's how federal appellate courts would treat it. The reality is, after 1914 (I think that's the year) we gave up mandatory SCOTUS review of such claims arising from state courts to cetiorari, which was denied in this case. Now, denial of certiorari indicates that SCOTUS didn't see a proper claim here, but that is not definitive. So while the District Court will likely find the same thing, what Congress is doing here is hardly all that novel and certainly not unconstitutional. It may well be imprudent, particularly as targeted to one family. But even that argument is a bit odd, since advocates wanted to make the law more general but could only muster support for the narrower bill.

Posted by: Fr. Bill at March 22, 2005 12:44 AM

Tom, isn't it begging the question to assume that Ms. Schiavo legitimately is listed a party to this case? If one doesn't think her parents are proper "next friends" or legal representatives of Ms. Schiavo's preferences -- and this is what has been disputed throughout: whether Ms. Schiavo's husband is correct about what the incapacitated person's wishes regarding life support would be, or whether her parents' preferences should be following -- then this really is a case of Schindler (parents) v. Schiavo (husband)... as it has been all along.

To put it another way, why should we trust the state court more when it issues a death warrant for Terry Schiavo than we do when it imposes a death sentence on a convicted criminal?

To put the responsibility of a 'death warrant' on the court makes me wonder again, When did Michael Schiavo stop being the bad guy?
Certainly a federal right can be involved in a civil case -- this is how SCOTUS ends up taking loads of civil cases -- but I'm very confused as to how there can be a writ of habeas corpus in a civil case. The state doesn't have the body; it's merely the decision-maker in the dispute between two parties about the correct fate for Ms. Schiavo. It is not a party to the case except insofar as the Schindlers are challenging the state courts' disposition of the case. Unlike the state's role in a criminal prosecution, Florida would love to have the dispute just go away through a sudden convergence of parental and spousal preference.

As for liberals' sudden love for state courts, remember that we are longtime fans of the FL Supreme Court -- hence Armen's invocation of Bush v. Gore. Lopez and Morrison are Commerce Clause; figure out how this case involves interstate commerce even in as attenuated a fashion as the subject of the Congressional interference coming from interstate commerce (guns) or interstate commerce's being deleteriously affected by the subject of the Congressional interference (violence against women). I s'pose someone could claim that she's scared to go to Florida now b/c the courts there will let her husband pull the plug on her... or that Congress really is legislating about the medical equipment involved rather than the death (although the medical equipment is being taken away...)

Posted by: PG at March 22, 2005 10:46 AM

PG--this law is not an exercise of the commerce power. I don't know why people imagine that it should be, except that we are so used to unauthorized Congressional power grabs that we naturally look for a mystical tie to commerce rather than for an enumerated power. In this case, the law amounts to a use of the routine power of congress to set the jurisdiction of the federal courts, and it needs no further justification.

I brought up Lopez and Morrisson only to note that they stand as high water marks for the supposed rising tide of federalism, and they were rather reviled by the critics of this law, precisely for that purpose.

Posted by: Fr. Bill at March 22, 2005 03:25 PM

Fr. Bill -- Sorry, I was trying to be a little funny and it seems to have fallen flat... as usual... [sigh].

One could say that liberals like a highly expansive view of the commerce clause, but not having Congress play with the federal courts' jurisdiction in the absence of commerce clause powers being exercised. This predates Schiavo.

Posted by: PG at March 22, 2005 07:54 PM

Fr. Bill - Don't dismiss the Commerce type questions so fast. This case is more than just Congress defining Federal jurisdiction. It isn't like Ms. Shiavo's case was already within federal jurisdiction, and Congress is dictating which court it will go to. Art III, Sect. 2 "The judicial Power shall extend to all cases, in law and equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." Congress passed this law granting a Federal Court jurisdiciton over subject matter (Ms. Shiavo's feeding tube). Therefore it seems to me that the only way they could do that is if federal law could reach Ms. Shiavo's feeding tube in the first place. This is a power grab by Congress, and should be struck down.

My vote for the Commerce Clause hook is the fact that the food they would be giving Terri probably traveled through interstate commerce.

Posted by: Unreasonable Man at March 22, 2005 10:45 PM

PG wrote: "The state doesn't have the body; it's merely the decision-maker in the dispute between two parties about the correct fate for Ms. Schiavo."

I don't think this is quite true. Michael Schiavo is her guardian, but Terri's life is ultimately under the supervision of the court. As I see it, there is no way for the husband and the parents to reach a private settlement of this dispute. When Michael Schiavo decided that the best course of action was removal of nutrition and hydration, he didn't simply go in and start to pull out the tubes. Rather, he went to court and requested authorization to do so. In 2005, even if they wanted to, the parties couldn't privately agree, "OK, the parents will withdraw their objections, we'll both drop all the lawsuits and Michael will go pull the tubes." Court approval is still necessary, I think (even though it would likely be a formality in that instance).

I've been thinking about your suggestion that perhaps Terri should not properly be listed as a party. It's intriguing, but I think it's too much of a stretch. No matter how one characterizes the lawsuit or who is designated to represent her, it seems to me that Terri is a real party in interest -- her life is at issue. (Although Michael and the parents certainly have independent interests at stake here as well).

Everyone agrees that the state court's order to withdraw the tubes will sooner or later bring about the death of Terri Schiavo, just as a state court's order setting the execution of a condemned prisoner will bring about the death of that prisoner. I'm just saying that it doesn't seem that odd to me to conceive of a system of federal-court review for state-court orders withdrawing ordinary care, by analogy to habeas review in state capital cases.

Heck, in theory, one could probably permit federal-court review of any state-court decision (on due-process grounds). That would be chaotic and expensive, and so federal courts generally abstain from doing so. Habeas represents a carve-out from that abstention doctrine, a class of cases where we believe there's societal value in permitting federal-court review. An analogous exception for withdrawal-of-nutrition orders would just be another such carve-out.

By the way, I don't mean to suggest that I think that Michael Schiavo is a bad guy. To me he seems entirely sincere. Also, I'll leave the larger political implications to Fr. Bill and others; I'm just a law geek who enjoys talking about jurisdictional issues.

Posted by: Tom T. at March 23, 2005 12:01 AM

Unreasonable Man,

Congress only extended federal jurisdiction here to a federal court to hear federal quesitons...thus it needs no extra powers to do what it did. It appears (as was my guess) that the lower court decided there were not likely to be federal issues on which the parents would win; the Circuit will have a chance to review. But nothing here suggests a "power grab" of the federal government to decide issues not already quite proper to it.

Posted by: Fr. Bill at March 23, 2005 01:58 AM

But nothing here suggests a "power grab" of the federal government to decide issues not already quite proper to it.

I couldn't agree more. There's really nothing out of the ordinary with granting a U.S. DISTRICT COURT the right to review a state court decision in a CIVIL case. Happens ALL the time. I mean it's about as common as the Dodo.

Posted by: Armen at March 23, 2005 06:36 AM


Note what you establish--that this is uncommon. I grant that (I think I did above). I also think it is improvident. Nevertheless, it is not a power grab, and one should be careful (or at least I thought that was the point of discussing these things) to be clear on what is and is not happening.

That which is uncommon is not necessarily unconstituional. That Congress has not often extended jurisdiction in this way has nothing to do with whether it has the power to do so or is impermissibly grabbing at powers it doesn't properly have.

If you read the law properly (as the District Court did, it seems to me) it has not been granted the authority to review state law, just state court determinations of federal law. And yes, that actually does happen all the time in our federal system. That it was granted to a District Court to accomplish may be novel but hardly amounts to Congressional aggrandizement.

All the capitalization on earth wouldn't make it so.

Posted by: Fr. Bill at March 23, 2005 10:42 AM
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