The Political Spectrum

Half of me knows I shouldn’t, but I just can’t help commenting on the latest political attempts by both the Florida Legislature and the United States Congress to intervene in the Terri Schiavo case.

As you probably already are aware, I’ve commented on this before (scroll down to Right to Die?) and at that time concluded that while Mr. Schiavo may in fact be wrong, callous, and greedy in his rationale, nevertheless Florida law, and for that matter likely many other state laws would, and properly do afford him, not her parents, the legal right to make decisions with respect to his wife’s medical treatment.

This issue has been litigated numerous times in both the state and federal courts. Every state case that has heard the issues and reviewed the evidence has concluded that Mr. Schiavo is legally entitled under Florida law to make the decisions with respect to his wife’s medical care. In addition, every federal court that has been asked to review the case has denied review and/or relief based on lack of jurisdiction over the claims presented or deference to the sovereignty of the Florida courts. In other words, the court system has functioned exactly as it is supposed to, in accordance with both statutory and constitutional authority as well as applicable precedent. The problem is that the law allows a result that many people, rightly so, find to be repugnant. Therefore, politics and politicians have interfered with the hopes of rigging the system to achieve its desired results.

I’m going to go a bit easier on the Florida Legislature, in large part because it is their state laws that are the issue, and they of course have total authority to amend and/or alter them as they see fit. Though they have already tried to intervene once and were rightly rebuked, and rightly so, by the Florida Supreme Court for violating seperation of powers principles. Thus, my real beef right now is with Congress. The day before yesterday, quickly and quietly, the House of Representatives passed H.R. 1332, the Protection of Incapacitated Persons Act of 2005, which provides "incapacitated persons" with the right to have their cases heard de novo before federal courts. In fact, the law specifically provides that "no bar or limitation based on abstention, res judicata, collateral estoppel, procedural default, or any other doctrine of issue or claim preclusion shall apply." In other words, the fact that these issues have already been litigated and rejected by the Florida State courts will have no bearing on future review by a federal court. Put yet another way, "incapacitated persons" would enjoy a right of review that no other civil or criminal litigant currently enjoys in our legal system, namely, two bites at the apple, one in state court and one de novo in federal court.

While there are numerous problem with this approach, it seems to me that two are the most striking. First, there is the "federalism" concerns, as this bill represents a total disregard for the dual court system that generally the GOP is a strong supporter of upholding. It now appears that even the Grand Old Party is not immune from a bit of forum shopping when it suits their desired policy goals. Recall that it was just last year that the House adopted H.R. 3313 which, if enacted, would have stripped federal courts of jurisdiction with respect to full faith and credit issues involving marriage laws. Of course lest us forget the wonderful habeas corpus statute enacted several years ago that severely curtails, but in fairness does not totally prevent, the ability of the federal courts to review state criminal proceedings for procedural or heaven forbid constitutional violations. Why is it that the federal courts are not good arbiters of marriage or criminal laws, but are perfectly acceptable when it comes to de novo review of cases involving "incapacitated persons?"

My final point and critizim is a bit more philosophical than political, but nonetheless needs to be raised. A couple weeks ago, when the Supreme Court decided the Roper case, much (though not all) of the fervor among right-of-center commentators was "well while the court reached a conclusion that I agree with because I’m opposed to death penalty, but as much as I wish it were different, the Constitution clearly permits the execution of minors and to hold otherwise is judicial activism run amok." Or, phrased another way, the court engaged in conclusion based reasoning that is antithetical to the "interpretation of law" they decided what the outcome was going to be and worked backwards to find a justification. It seems to me that something similar is going on here. People think that they know what the "correct" result is with respect to Mrs. Schiavo, so they are trying everything in their power to work back from that result to find a legal basis to see it prevail. While I understand, respect, and applaud the people who are standing up to oppose the removal of the feeding tube on moral and religious grounds, the fact remains that although they may be right that doesn’t seem to justify the tortured reasoning and blatant disregard for the laws and our legal system that permits the removal to occur. Maybe the law will change, maybe it should, but for now as my previous post indicates, it’s pretty clear that the decision rests with Mr. Schiavo, like it or not and I don’t see any upside to hijacking the federal court system for no other reason that a powerful group of people disagree with the choice that he has made. Call me callous, uncaring, immoral, or what have you, but if we are a nation of laws, we will respect the fact that Mr. Schiavo has a legal right to be an ass and make decisions many may not like, such is life and, for that matter, death in a free society.

UPDATE 1:40 pm: As if things weren't bad enough, Congress, specifically the Senate Committee on Health, Education, Labor, and Pensions (HELP) has decided to subpenoa both Terri and her husband to testify before Congress on March 24. According to a press release by HELP Chairman Enzi, "Federal criminal law protects witnesses called before official Congressional committee proceedings from anyone who may obstruct or impede a witness’ attendance or testimony. More specifically, the law protects a witness from anyone who -- by threats, force, or by any threatening letter or communication --influences, obstructs, or impedes an inquiry or investigation by Congress. " Thus, the real reason for the subpeona is not to get any testimony from Mrs. Schiavo, but rather to prevent the tube from being removed by threating federal witness tampering charges and contempt of Congress. While I haven't researched the legality of this most recent development, I think I tentatively agree with Orin Kerr over at Volokh.

# posted by mouldfan : 9:20 AM