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March 22, 2005

Schiavo, legal miscellany

I'm writing an article about the Schiavo case and the separation of powers. I hope readers will add their thoughts and links to resources in the comments.

Consider this morning's post as a collection of resources, as opposed to an essay. Tristero's post on fascism has spawned a lively legal discussion, which I hope will continue. Ground rules: Nobody accuses anyone of murder. If you want to gossip about Michael and Terri's marriage, find a chat room.

At Lawyers, Guns and Money, Scott Lemieux argues convincingly that S.686 is transparently unconstitutional. Here's my summary of his major arguments:

1. Congress has no constitutional authority to pass this bill. Why not? Because the bill has nothing to do with interstate commerce or rights violations. (Volokh posts some comments from Randy Mills explaining why there is no prima facie claim that Schiavo's rights have been violated in any relevant sense.) Scott suggests that Congress might have some authority in virtue of its Article III powers to regulate the appellate jurisdiction of the federal courts--except that the bill doesn't add to the appellate jurisdiction.
2. In other words, the bill gives Terri's parents a new trial, not an appeal. This is a critical distinction because the bill purports to render null and void all the rulings of the Florida courts. If Terri's case were simply appealed to a higher court, the original judgments of fact from lower courts would stand. Only the legal reasoning could be challenged.
3. The bill passed the Senate without a quorum.
4. The bill violates the Due Process Clause of the Fifth Amendment. The Supreme Court has already affirmed that everyone has the right to refuse medical treatment, so Congress's attempt to circumvent this right in a particular case is a violation.
5. An even more serious violation of the Due Process Clause is the fact that the law is written to apply to Terri and Terri alone. To write a law that applies to exactly one case is arbitrary action. Laws are supposed to enforce general principles. But this law doesn't say "Whenever anyone like Terri is in a situation like this, they get a new trial in federal court." Instead, the bill is a "go to federal court free" pass. That is a violation of due process.

Very clear and insightful legal analysis from Iocaste of Fantasy Life. She thinks the Schiavo Act might be constitutional. (Hat tip to Scott)

Legal Ease archives a good NYT editorial on Schiavo and the rule of law.

Dahlia Lithwick has a good column in Slate about Schiavo bill and the separation of powers.

Froomkin wonders why the Democrats didn't take the opportunity to add a rider to the Schiavo bill. If Kinko's charges a premium for quick turnaround, you'd think the Democrats would extract some fee for same day service over the holiday weekend. Perhaps a provision banning torture by the CIA, or something. [Via Julie Saltman]


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As I noted in the previous post specifically about the Schiavo case, yesterday's post generated lots of comments. One in particular was from the original gentleman who described the situation as fascism. [Read More]


I think the Senate Rules let the Senate define its quorum as it did here. Also, even if the commerce clause argument works couldn't you still make an argument that congress has the right to legislate on civil rights? The bill of attainder arguments seem to me to be worth pursuing and general separation of powers and comity arguments.

I think the Senate Rules let the Senate define its quorum as it did here. Also, even if the commerce clause argument works couldn't you still make an argument that congress has the right to legislate on civil rights? The bill of attainder arguments seem to me to be worth pursuing and general separation of powers and comity arguments.


I don't think the analysis you link to and summarize is very convincing at all. For example, it's clear the legislation is intended to allow review of a possible rights violation (see sentence 3 of section 2). The fact that the bill allows review of a possible rights violation (rather than requiring reinsertion of a feeding tube) makes the claim that it violates the Fifth Amendment a little puzzling, at best.

In addition, the rules of the Senate presume a quorum is present unless challenged, and since the Constitution gives the Senate the right to make its own rules, I think it is highly unlikely that any court would find the legislation unconstitutional on the ground that only 3 senators were in the chamber when it passed.

All that aside, I think the general separation of powers issue is very important (i.e., can/should Congress seek provide a new forum for just one person, even if they don't actually prejudge the outcome). I would be interested in your thoughts on that from a normative perspective (rather than a technical doctrinal perspective). For example, is the problem here that it was done for only one person, or that it second-guesses the outcome of the state proceeding).*

*Note: Federal courts exercise limited review over state court criminal judgments through the writ of habeas corpus. A big theme of the Rehnquist court/Republican Congress has been to reduce the scope of habeas review, while liberals have generally fought to preserve habeas as an avenue for challenging state criminal sentences, especially in death penalty cases.

Oops... Michael Schiavo departed from Felos's script, and admitted the truth on Larry King Live:

CNN LARRY KING LIVE March 18, 2005

KING: Have you had any contact with the family today? This is a sad day all the way around, Michael. We know of your dispute.

M. SCHIAVO: I've had no contact with them.

KING: No contact at all?


KING: Do you understand how they feel?

M. SCHIAVO: Yes, I do. But this is not about them, it's about Terri. And I've also said that in court. We didn't know what Terri wanted, but this is what we want...

That's consistent with what he told other people (including a girlfriend) up until the malpractice settlement was awarded (which he stood to inherit): that he didn't know what Terri's wishes would be.

It also vindicates guardian ad litem Pearse, who concluded that Michael Schiavo's claim (to recall conversations with Terri in which she said she'd not want to be kept alive) was not credible.

It also means that a key official conclusion of Judge Greer was wrong. Greer ruled that there was "clear and convincing evidence" that Terri had told Michael that she not wish be kept alive with assisted feeding or other support if she were in this condition. But now we know that is untrue, because Michael, himself, has now admitted it on national television: Terri did not express a wish to die in circumstances like these.


Why are you talking as if this were a Republican v. Democrat issue? This issue is about protecting the rights of the helpless, and once upon a time Democrats cared about things like that.

Fortunately, some of them still do, even if you do not. Sen. Tom Harkin is a true progressive, and an ardent pacifist. Sen. Tom Harkin is also one of the principle authors of the bill to save Terri Schiavo.


FRIDAY, MARCH 18, 2005

March 18, 2005

“I have long been an advocate for the rights of people with disabilities. Many in that community are keenly aware of the risk of incapacitation. In such cases, I believe that every precaution should be taken to learn and respect their desires regarding the removal of life supports.

“Over the last week, I have been working hard, and in good faith with Senator Mel Martinez (R-FL), Senator Rick Santorum (R-PA), and others to come up with legislation that would allow federal review of the Terri Schiavo case. Yesterday afternoon, we came up with bipartisan measure that did just that and many of my Senate Republican and Democratic colleagues deserve praise for their hard and swift work.

“Unfortunately, the House Republican Leadership refused to take up the bill before sending members home for a two week vacation. There is no excuse for stalling a matter of such an urgent and life threatening nature. They are solely responsible for the consequences Ms. Schiavo and her family now face, as well as for today’s unfortunate events. Congressional action is this area should be based on respect for the wishes and dignity of those who are incapacitated.

“It is my belief that people with disabilities and those who are incapacitated deserve the utmost dignity and respect. I plan to continue to work with my Senate colleagues on both sides of the aisle to give cases like this an opportunity for further review in federal courts.”


This may be only tangentially related, but I have a post up on the degree to which the Schiavo debacle may be an attempt to frame the right-to-die debate in terms of bogus euthanasia fears in anticipation of the forthcoming opinion in Gonzales v. Oregon. Here's the URL:


I don't know enough about the ins and outs of constitutional law to comment in a meaningful way on the points you bring up. I would suggest that before you finish your article that you contact Representative Frank or, even better Nadler. Nadler was quite eloquent in the final debate, and very detailed in his legal objections to the bill.

Thank you for featuring my post as you did. And all of you who commented - pro, con, neo-con, or otherwise - thank you as well for your time and attention. There's a brief followup today on my blog, by the way, but I think I've said as much as I can right now. I have to think through the implications of what it means to be living in an openly fascist society and that's best done in private.

But now we know that is untrue, because Michael, himself, has now admitted it on national television: Terri did not express a wish to die in circumstances like these.

You know, Dave, if you're going to make that case, maybe you need to make it on the basis of something other than an INTERRUPTED sentence.

That's what those three little dots mean at the end of your quote from Larry King. Michael Schiavo was interrupted by a question from Larry King and did not complete his thought.

Talk about grasping at straws.

In response to "Dave," this from Dahlia Lithwick (via the link in the post):

The reason we have courts, the reason we traditionally assign these brutal fact-finding responsibilities to those courts, is that intimate legal custody and life-or-death decisions should not be determined based on popular referenda. They need to be rooted, as much as possible, in rock-solid legal rules.

This matter is now being "re-litigated" in public, without any rules, any way to assess the credibility of witnesses, even (as pointed out above) any way to assess the completeness of the alleged statements of witnesses and parties.

The very definition, in other words, of a "legal circus."

Findings of fact have been made as to Terri Schiavo and the ability of her husband to refuse medical care on her behalf. Legally, that is all this case is about now. No Florida court has ever ruled for the parents, and the Congress did not, and could not, give them new grounds to litigate this matter. What it attempted to do was to give them a new forum, but without new legal grounds, the plaintiffs had no choice but to use the old ones (the "due process" claim, largely) in an attempt to frame a federal question (since Congress did not give the Court in Florida, or any other federal court, authority to re-determine this case based on state law. That would be an even more grotesgue violation of state sovereignty).

Those findings are final. This matter is, effectively, over. The court has not ruled on the merits but, for all intents and purposes, it has. There may yet be endless discussions in the courts about the applicable law.

No one in any court is dicussing the facts of this matter any longer. They are settled. Raising them now, outside the court, is simply pointless.

Ask yourselves this question: If today, Arty Duckworth's wife, Gillian (all taking place in New York), was in a PVS, and she, like Terri, had declared her desires, and Gillian's parents said to keep her feeding tube in, while Arty wants to do what Gillian wanted, i.e., remove the tube, and the NY courts ordered its removal, could Gillian's parents take their case to Federal Court? What's you answer?

On the flip side, ask yourselves this question: If today, Arty Duckworth's wife, Gillian (all taking place in New York), was in a PVS, and she, UNlike Terri, had declared her desires TO KEEP A FEEDING TUBE IN, and Gillian's parents said to WITHDRAW her feeding tube, while Arty wants to do what Gillian wanted, i.e., KEEP the tube IN, and the NY courts ordered it KEPT IN, could Gillian's parents take their case to Federal Court TO ENFORCE HER RIGHT TO DIE? What's you answer?

I'm going to second that Iocaste's legal analysis is probably the best. The primary question here seems to be equal protection, although there may be some good due process points to make.

Aside from the above, when you start to reckon with other Americans' rights who are similarly situated, you come to see how utterly unacceptable this law is. The reason that there is little precedent for such a case is simply because we have never had a Congress and President who had such utter contempt for the rule of law.

There is a doctrine called res judicata, which simply stated, is
a doctrine that prevents a litigant from getting yet another day in court after the first lawsuit is concluded by giving a different reason than he gave in the first case or by going to a different court and attempting to relitigate the case. Once that judgment is secured the parties are bound by it and vested rights have been acquired. I submit that such a judgment is a property right that cannot be taken away by subsequent legislation. The fact that congress attempted to do will be found as an unlawful taking, as well as the impairment of a vested right.

The doctrine of Res Judicata, Finality of Judgments, is recognized by the Federal Courts as between state judgments and subsequently filed actions in Federal Court. That rule is judicially created and is implicated by the separation of powers doctrine when the Congress attempts to change that substantive rule retroactively.

Importantly, the act that was passed more than 4 years after the alleged federal violations first took place and thereby unlawfully extended the statute of limitations beyond the period that these cases could have been brought. That is unconstitutional.

Ah, but Robert, raising them now is not pointless.

It's simply pointless from a legal perspective.

The legal outcome is not really in doubt. The aims of this battle are now political, and they are not related to anyone named Schiavo.

I'm surprised that more people haven't picked up on this from today's New York Times:

On Friday, as the leaders of both chambers scrambled to try to stop the removal of Ms. Schiavo's feeding tube, Mr. DeLay, a Texas Republican, turned his attention to social conservatives gathered at a Washington hotel and described what he viewed as the intertwined struggle to save Ms. Schiavo, expand the conservative movement and defend himself against accusations of ethical lapses.

"One thing that God has brought to us is Terri Schiavo, to help elevate the visibility of what is going on in America," Mr. DeLay told a conference organized by the Family Research Council, a conservative Christian group. A recording of the event was provided by the advocacy organization Americans United for Separation of Church and State.

"This is exactly the issue that is going on in America, of attacks against the conservative movement, against me and against many others," Mr. DeLay said.


That appalling DeLay quote you mention has actually been all over the blogosphere.

Yeah, Marty, I'd assume that res judicata certainly applies to the questions actually adjudicated by the state court, but that wouldn't make the law unconstitutional - it'd just severely limit what can be reviewed in a way that - gasp - isn't exactly consistent with the way the cons have been characterizing it to their base.


Tom Harkin is an "ardent pacifist"? Why did he vote to authorize the war?

It's strange- Conservatives don't trust the government to do anything right, except when it comes to extremely complex moral and personal issues like abortion and the right to die....

W got an 'only in this case' ruling from the Supremes with respect to the contest in Florida in 2000. Once the precedent is set. what's there to block another politically convenient law or ruling of the same sort? We no longer live in a land ruled by laws, but in a land in which laws are bent ot serve the apparent intrerests of those in power.
Frankly, I think that any discussion that focusses on any aspect of the Schiavvo case aside from this is a waste of time. Once our land is a land of exceptions, it is a land that is necessarily ruled by those who are most able to persuade the lawmakers to bend the rules in favor of the powerful. Shit, for all the difference it makes, we might as well move to El Salvador.

swamp thing, you've got it all wrong.

Delay et al are playing to lose. They want to lose so bad they can taste it.

Since they've framed this as yet another attack on conservatism and Christian values, they need to go down fighting to keep their base angry. Then they'll frame their defeat as yet another example of how the gummit should stay out of people's private affairs, lest those activist judges put more innocent women to death.

I believe Terri's body should be allowed to die peacefully, and that the Florida courts have arrived at proper conclusions. What I address here is whether the recent law is itself improper, as many who share my views about the outcome appear to believe. I am going to suggest that it may be a proper exercise of congressional authority. Note that I said "proper", not "constitutional". The constitutional issue will be decided by the legal system, and I am not a lawyer. Here is my argument. History tells us that state courts have all too frequently served as a source of injustice, eventually requiring federal legislative remedies - racial segregation being the most egregious example. At the same time, it seems morally wrong (and probably constitutionally wrong as well) for Congress to pass a law that would deprive an individual of a right that a state court had already decided he or she was entitled to exercise. As an example, it would be wrong for a federal law to deprive Michael Schiavo, retroactively, of any rights the Florida courts judged him entitled to. But is the current law aimed at depriving anyone of rights? Not on its surface, at least. The Florida courts and the litigants all agree that what is at issue is not Michael's rights, nor the Schindler's rights, but Terri's rights. If the law stated that her right to refuse tube feeding must be subordinated to Congress's desire to continue the feeding, that would be a violation. But the law doesn't specify anything except that her rights, whatever they are, should be protected by an additional layer of federal judicidal review, with the goal of ensuring that what she truly wished is what will in fact be done.

I fervently hope the the Schindlers' appeal will be rejected for the reasons given by Judge Whittemore. At the same time, it is worth considering how the precedent (if it is one) of this law might serve justice in the future as long as it is restricted to ensuring rights rather than denying them. Imagine that a quadriplegic gay man is sentenced by a state court to prison for failing to appear at a hearing. He claims that he had no transportation to the courthouse and then no way to get to the third floor of a building that had stairs but no elevators. His claim was dismissed by a court that stated that he should have made adequate arrangements in advance. (A somewhat related case actually was litigated in a state court in recent years). Congress, based on reasonable evidence to suspect that homophobic prejudice underlay the ruling, legislates an additional federal judicial review of the sentence to ensure that the man's civil rights were properly considered. Should we be outraged by such a circumstance? I would suggest not. Outrageous as the recent actions of Congress may be, I believe that outrage is warranted by their intent to perpetrate an injustice while pandering to a fanatical minority on the religious right, but if the same type of legislation were intended to rectify an injustice, I would feel differently.

Thank you for your sensible views on this Schiavo fiasco.

Dave, is there a reason you post the same message on three different threads?

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