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March 25, 2005

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Appalled Moderate

TM:

Let's look at the ... ahem ... "conspiracy theories" posed by your blogtagonist Mr.Kleiman on how come the Senate passed a "process based" not a "result based" bill:

"1.Sen. Frist was in a hurry to get the bill through, and weakening or taking out the TRO provision was Sen. Levin's price for not stalling it.

2. The Republican leadership wanted the bill to pass, but didn't want there to be an actual trial... Passing the bill and then having Terri Schiavo die anyway gives them the best of all possible worlds: victory, a martyr to judicial tyranny, and no examination of uncomfortable fact.

3. Some combination of (1) and (2)."

You support a fourth -- "the Constitution tied Frist's hands"

Actually, #1 is not a conspiracy theory -- it is a pretty reasonable explanation. Frist has a choice -- pass a bill that might save Ms. S, or pass a bill that mandates Ms. S' saving, but which may not pass until after Ms. S death. He chooses quick. Assuming Frist's sincerity, that decision does not reflect badly on him.

#2 assumes that the GOP leader is a most villainous hypocrite who delights in weaving subtle plots for their own sake, but is uninterested in actually accomplishing anything. That's a lot to swallow, so I dismiss this one, until someone shows me the evidence (preferably on senate letterhead and without misspellings).

#3 isn't a real option, as stated. You either believe the GOP wanted a new trial -- and were willing to assume the risks involved with that -- or not. A possible alternative is that Frist wanted judicial fingerprints on any decision to give a new trial, so that Congress would not bear the full brunt of any blame for any decision to hold a new trial. Doesn't seem likely, somehow.

Your #4 -- Frist worked to stay within the bounds of the Constitution -- does not ring true. There is little evidence that the GOP was worrying about constitutionality in its debate over the bill, and there was evidence that Frist was concerned about getting the bill passed. (The colloquy with Levin makes this pretty clear.)

Mark Kleiman

Assuming that Congress was Constitutinoally empowered to move an aready-decided case from state jurisdiction to Federal jurisdiction, there was no Constitutional bar to adding the clause ordering the Fedral court to stay any orders necessary to be able to being the case to trial on its merits. The provision Sen. Levin objected to would have done that, or (as the appeals court opinions make clear) the law could have directed the court to issue any orders necessary under the All Writs Act to perfect its jurisdiction over the case: i.e., to order the tube reinserted so that Terri Schiavo would stay alive long enough for the courts to decide the case.

Note, moreover, that Congress could still do so. There's no procedural bar to calling Congress back into session to pass a law that would order the court to do what the Speaker, the House Majority Leader, and the Senate Majority Leader say Congress intended the court to do. So why not? You may call it "conspiracy;" no doubt they call it "rallying the base." But the point is to futher enrage the Christian right against the Federal judiciary, and it's working perfectly.

TM

But the point is to futher enrage the Christian right against the Federal judiciary, and it's working perfectly.

Uh huh. And what was Tom Harkin's point? Ralph Nader's?

Feel free to believe the worst of the folks who supported this, but I disagree.

There is little evidence that the GOP was worrying about constitutionality in its debate over the bill,

Well, they are all sworn to uphold the Constitution, and many of themare lawyers. It is at least possible that an unspoken assumption was, we need to pass something a court will uphold. Maybe.

Or if not, why did Frist engage in that ritual exchange with Levin? That is a semi-rhetorical question - I don't know, but one reading is, he said that to *eliminate* a judicial objection to the bill.

Oh, and Mark, since you are dispensing legal advice again, maybe you could respond to this post, which made a few points about one of your other novel legal theories. Thanks, and enjoy the weekend.

sometime lawyer

And maybe it was only window dressing, intended only to placate the constituency without affecting the existing legislative scheme, clearly understood by both sides.

Toby Petzold

This is from Federalist No. 44 (emphases mine):

Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. [...] The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less informed part of the community.
The US Congress has declared itself supersessory ---if that's even a word--- to the judiciary in exactly the sort of ex post facto manner that Madison warned against. This whole thing is a political disaster for the Republican Party. I don't see how that can be contradicted.
sometime lawyer

I cannot agree with Mr. Petzold that this was a bill of attainder, ex post facto law or law impairing the obligation of contracts. It was a limited expansion of federal jurisdiction. It would have been a meaningful expansion if it had included a limited restriction of the courts' equitable discretion, that is, mandated a temporary stay until full adjudication on the merits. It did not. In substance, it was a hot potato that the Congress tossed to the Courts which, in turn, tossed it away as fast they could.

Toby Petzold

Sometime:

It would have been a meaningful expansion if it had included a limited restriction of the courts' equitable discretion, that is, mandated a temporary stay until full adjudication on the merits. It did not.

The United States Congress broke faith with the very principle of Federalism. They substituted their own will for that of a state judicial system that had already adjudicated the suits in this case on multiple occasions. And they did it with very specific regard to a private individual for no discernable reason other than political opportunism.

That the Act did not mandate a "temporary stay" ---and, thus, does not constitute a "meaningful expansion" of federal jurisdiction by your standards--- is irrelevant. The Act calls for a de novo determination by a Federal court ---completely ignoring the entire history of the litigation in Florida. But on what basis? Terri Schiavo's life isn't a matter of war or national security. There was no compelling Federal argument for this kind of intervention.

[...] the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.
On what basis can our national leaders justify this usurpation of state judicial authority? It's nonsense.
TM

And they did it with very specific regard to a private individual for no discernable reason other than political opportunism.

I discern the possibility that a life was at stake, and that time was of the essence.

To my unschooled eye, if Congress had *ordered* a stay, that would be an obvious usurpation of judical powers by the other branches. Surely, it is up to the courts to decide when to order a stay?

Toby Petzold

In the aftermath of the 2000 Election, the Gore people were seeking remedies from the SCOTUS and the Florida courts that could not possibly be implemented because of the deadline factor. They were up against Constitutionally-mandated deadlines that no stay could stay.

I think the Schiavo Relief Act was passed with the expectation that there would effectively be a stay ordered by the Federal court because of the deadline inherent in the endurance of a human being facing starvation. And why not? The Federal court was to consider the Schindlers' claims de novo and to take no judicial notice (if that's the proper term) of what had already gone on in the Florida courts. Would a return to the status quo ante (i.e., reinserting the feeding tube) have been such a stretch at that point?

So how is the power to order a stay any more important than being assigned the jurisdiction to determine the merits of the claims of abuse or of deprivation of due process in the first place?

(Here endeth my heroic impersonation of a lawyer. Thank you.)

Patrick R. Sullivan

"...for no discernable reason other than political opportunism."

It's too difficult for you to imagine that some people might recoil from deliberately starving (or dehydrating) an innocent human being?

TM

This is barrel-fishing. The latest from Ann Althouse includes this:

I took a lot of heat on the conlawprof email list arguing that Congress did have the power to pass this statute. I think some of the "intent" that Congress failed to express in the language of the statute was left out because it would have created constitutional problems. For example, if Congress had dictated to the federal courts that they issue a particular form of relief or if it had instructed the federal courts to redo the state law parts of the case, the statute would probably have been unconstitutional.

So I have Ann Althouse and the NY Times (and I bet I could find lots more, like Jonathon Adler)

So far, Mark Kleiman has himself, with his uncanny past successes.

Toby Petzold

"...for no discernable reason other than political opportunism."

Sullivan:

It's too difficult for you to imagine that some people might recoil from deliberately starving (or dehydrating) an innocent human being?

Sure. It makes me recoil, too. That's why I believe in euthanasia. Terri Schiavo should be administered a large amount of morphine to help her go to sleep forever. I honestly believe that that would be the most humane thing possible.

It's worth remembering that our species is called Homo sapiens sapiens for a reason. We are "thinking man" ---and our cerebral cortex is the seat of our human being. When we can no longer exercise cognition, we cease to be truly or meaningfully human.

Patrick R. Sullivan

I note that Toby responded to my challenge to his:

"...for no discernable reason other than political opportunism."

By changing the subject.

And, why do you suggest a painkiller?

TM

Terri Schiavo should be administered a large amount of morphine to help her go to sleep forever. I honestly believe that that would be the most humane thing possible.

Now wait a second - that is totally illegal and, apparently, contrary to medical ethics as well.

I thought you objected to *my* recommending an alternative to the current legal process, yet here you are, doing the same thing.

You can't imagine my shock and outrage. Where's the respect for federalism, for Florida's procedures, etc...

Toby Petzold

Well, I did say should, which takes no notice of legality, but of what's right. I think euthanasia should be an option. So do a lot of doctors, notwithstanding your claim that it is medically unethical.

Toby Petzold

Sullivan:

And, why do you suggest a painkiller?

Because it's a drug that you can overdose someone with. I wasn't thinking of its analgesic properties.

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