Here we go again

Congress Ready to Again Debate End-of-Life Issues

WASHINGTON, March 27 - After a string of fruitless legal and legislative efforts, the central question in the Terri Schiavo case - Who makes end-of-life decisions when the patient's wishes are disputed? - is headed back to Capitol Hill, where debate over broader legislation has already begun. [...] "I think we should look into this and very possibly legislate it," said Representative Barney Frank, Democrat of Massachusetts, who opposed Congressional action in the Schiavo case. Mr. Frank was speaking on Sunday on the ABC News program "This Week With George Stephanopoulos." Mr. Frank added: "I think Congress needs to do more. Because I've spoken with a lot of disability groups who are concerned that, even where a choice is made to terminate life, it might be coerced by circumstances." [NYT permalink]

I'm very disappointed in Barney Frank.

There is absolutely no reason for the federal government to insinuate itself into guardianship disputes.
Pro-tubers assert that the Florida courts denied Terri Schiavo due process, but they don't explain how.

Predictably, Conservatives are trying justify the legislation as a necessary antidote to the rampant judicial activism that killed Terri Schiavo. So, either "activist judge" has lost all meaning, or they haven't read the law. Luckily, hilzoy has.

Florida already provides ample opportunities for the review or appeal of disputed guardianships (as do other states). We know just how ample Florida's opportunities are because it took the Schindlers eight years of intensive litigation to exhaust them.

It's not clear from the NYT article whether the proposed legislation would allow for de novo reviews of all disputed guardianship cases. (That's what the last round of legislation tried to do exclusively for Terri.)

Congress can't just write off the findings of the state courts in order to grant a new trial. But it would be equally hard to justify a law that simply allowed one more round of appeals--if N appeals in state court arent' enough to establish the patient's wishes, why should we think that N+1 rounds will suffice? If N+1 beats N, why not go for N+2, or more? Why not give the pro-tubers the right to litigate until the guardian supplies deductive proof of the patient's wishes or until the patient dies of natural causes?

Obviously, some court must have the final say. There's just no good reason to grant that power to a federal judge. I support federal intervention in defense of constitutional rights--but I see no evidence that the states are violating anyone's rights by adjudicating guardianship disputes.

Comments

[Ramanujan]

Proof by induction? Hot!

[razor]

Mr Frank wants to turn this into a government assitance/payment issue, so everyone gets to use heroice measures (Millions) on their loved and not so loved ones.

Not that this is wise, it is just the standard eastern liberal democrat approach to the use of Federal State power. Federalism is irrelevant to these people, once reason the democrat response to the circus has been so lame.

[djw]

I agree with your point here but I think this reasoning is incomplete:

Congress can't just write off the findings of the state courts in order to grant a new trial. But it would be equally hard to justify a law that simply allowed one more round of appeals--if N appeals in state court arent' enough to establish the patient's wishes, why should we think that N+1 rounds will suffice? If N+1 beats N, why not go for N+2, or more?

On could argue that a)there is an optimum number of appeals in a process to provide the proper balance between justice and expediency, and we're one round short. I'm not making the case, and I'm not hearing anyone really try to, but it's possible there is a persuasive case there.

[Joe S.]

Like the previous poster, I agree with your conclusion, but have problems with your reasoning.

You are implicitly assuming that family law should be reserved for the states, with a semi-explicit override for "civil rights." (I think by "civil rights" you mean antidiscrimination on the traditional grounds: race, gender.)

Given your implicit assumption, your point is well-taken. There is no need for Congress to impose due process standards on state law when the federal courts have not found them lacking. (Exception: federal choice-of-law rules, which serve to support federalism.)

But you still must argue independently that the feds have no (or at most minimal) business in family law. This is more an argument from Constitutional propriety than the limits of Congress' powers.

[Carla]

This particular facet of law should be left to individuals to decide, not government.

End of life issues are much too personal and much too emotional to allow the government to decide.

In an encouraging sign, most Americans agree with allowing Physician Assisted Suicide. I think this must be stepping a stone to a larger public relations campaign against government intervention of these matters.

[rob loftis]

If congress feels like they need to pass a law, might they try to ban passive euthanasia by removing feeding and hydration tubes?

I would not support a law, but I imagine that a lot of people would. Whenever I teach euthanasia, I get a very strong emotional reaction from the students against this kind of passive killing.

[Lance Mannion]

I think Razor's right about what Frank was thinking, although I actually approve and don't share Razor's apparent disgust with the idea of the poor and the middle class being able to give their loved ones the same medical care as the rich get to give theirs.

[razor]

Razor's disgust is with federalism, and, secondarily, with the misdirection on the who pays for what issue. There are reasons the Democratic response to the circus have been so lame.

[Eli Stephens]

No need to read the law, just the Constitution, specifically the 10th Amendment

[Lindsay Beyerstein]

Joe said:

You are implicitly assuming that family law should be reserved for the states, with a semi-explicit override for "civil rights." (I think by "civil rights" you mean antidiscrimination on the traditional grounds: race, gender.)

I'm arguing for a very minimal conception federalism. All I'm saying is that the federal government may not encroach on the powers of the States without a good reason--i.e. to prevent the state from violating the constitutional rights guaranteed to every American. (After all, what good are constitutional rights if your state can just override them?)

If it could be shown that the state guardianship system was discriminatory or otherwise deeply unfair, then federal intervention might be justified. But I don't think anyone has come close to establishing that.

As djw notes, one might argue that there is an ideal number of appeals, N, and that people who get only N-1 appeals aren't getting due process. In that case, maybe the federal government should intervene to keep the N-1-ers from being shortchanged by their states. But again, I don't think anyone has made that case.

[Robert M. Jeffers]

There is precisely a limit on Congressional power in the Constitution. Civil rights was tagged to the Commerce clause (IIR ConLaw classes correctly; it's been too long). Family law is reserved to the states, and frankly, any attempt to pass family law legislation by the U.S. Congress would face a stiff Constitutional challenge.

IOW, you might make even a modal logic argument for why it should be allowed (Kurt Godel reportedly found a fatal flaw in the logic of the Constitutional structure of government, that would give way to a dictatorship), but that doesn't make a legal, or a Constitutional, argument.

Ditto the idea of making the Federal courts a "super-appellate" system over state courts. It is not only impractical, it would be held unconstitutional on grounds that might only pass muster under the "Judicial hunch" theory of jurisprudence; but it would still be held unconstitutional.

[Robert M. Jeffers]

As djw notes, one might argue that there is an ideal number of appeals, N, and that people who get only N-1 appeals aren't getting due process. In that case, maybe the federal government should intervene to keep the N-1-ers from being shortchanged by their states. But again, I don't think anyone has made that case.

Actually, federal courts deal with such cases all the time, and usually simply remand the case to state court for further proceedings consistent with due process.

Hence, all the appeals in death penalty cases, for instance.