Saturday, March 19, 2005

The Schiavo Bill


Here is the text of the House bill and the Senate bill. The Senate bill is the one that is likely to pass.

The Senate bill looks like a final exam in a Federal Courts course. De novo review of state court findings. No Younger abstention. No requirement of exhaustion of remedies.

You just can't make this stuff up.

So you may be thinking, what's all this about federal injunctions against ongoing state court proceedings? Whatever happened to Hugo Black and "Our Federalism?" Well, there's at least one important difference here: the injunction against concurrent state judicial proceedings wouldn't be in violation of the Anti-injunction act, because there is express authorization from Congress.


I understand these bills are aimed specifically at one individual. How many life and death medical decisions such as in this case are made daily? Why is this one being singled out? This may be Bush v. Gore all over again as Bush plays to his political base as surely the matter will end up in the Supreme Court, unless the woman dies in the meantime. Bush v. Gore involved the State of Florida, as does this case. There is no shame in Congress nor in the Presidency. What can we expect from the courts? Dignity DeLay-ed is dignity denied.

Can someone explain to me how a federal constitutional violation can be asserted here?

Specifically, where's the state action?

The woman's husband is a private party, and if I understand correctly, the hospice is a private institution. And if I recall my con law correctly, notwithstanding the racial discrimination cases, the mere involvement of the state courts in adjudicating the action is not enough to establish state action. If that was the case, then ANY private action could be morphed into state action merely by hauling the private actor into court.

I understand that the short-term goal of the legislation is primarily to get a federal court to issue a stay while the claim is adjudicated, but in the end, isn't it futile?

Just reading the thing gives me a constitutional headache. I've been arguing in several places that, contrary to popular belief, Michael Schiavo did not make the decision to remove the tube. The court did, acting as Terri's surrogate, after determining, by clear and convincing evidence, that it is her wish. This was done through the normal course of Florida law.

Does that make it state action? I have no idea.

I've been looking more at the state action doctrine, and I suppose there's a stronger case for it if the lawsuit challenges the state law procedures re guardianship.

I'm not sure what Younger abstension or exhaustion have to do with it however. As nearly as I can tell, the parties ran through all state court procedures. The state supreme court already passed on it, and the person isn't in state custody, so I don't think state habeas would apply. Nor would the federal court wouldn't have to enjoin any state court proceeding to grant relief.

Still, I'm deeply troubled by this for many other reasons. This commentator raises a number of strong arguments:

Joe S. writes:

" ... in the end, isn't it futile?"

Not if you're a grandstanding demagogue who considers the courts his own personal PR organization.

1. I'm a bit unclear as to the status of the state cases: have the federal constitutional issues been finally decided in a state court judgment that would normally be given res judicata effect?

2. Does the husband have an equal protection claim under the Village of Willowbrook v. Olech "class of one" theory?

The Constitutional principle being invoked here is Quod rex vult, lex fit. Throw away your Federalist pPapers, and buy a copy of Bossuet instead.

As far as res judicata, there's nothing constitutional about it. Congress makes the Rules of Civil Procedure, so I suppose they can abrogate them.

As far as Equal Protection, anyone care to speculate on what the rational basis for this classification-of-one would be?

Senate Bill Section 5: "the District Court may issue a stay of any State court order authorizing or directing..." It is not obvious that granting the Federal court authority to stay the State court order removing the tube is the same thing as granting the court authority to mandate its reinsertion over the expressed wishes of the patient and the objections of her husband. A judge might read Section 5 as limiting the scope of preliminary injunction to removing State mandates from the case (a reasonable point of view if we are looking for consititutional issues). Section 3 doesn't kick in until the merits of the case are determined.

I think the Article III standing issue is a serious one too. Remember, the first time this went to federal court, the judge found the parents had no standing.

By the usual analysis, it's hard to argue that a parent isn't suffering an injury when their offspring dies. Nonetheless, that's the law as it has developed. For example, had the daughter been sentenced to death by the Florida state courts in a criminal prosecution, the parents would have no standing to file a suit asserting constitutional violations in the daughter's trial.

Why would this by any different?

To amplify/clarify on the Olech Equal Protection question: even if there would be a rational basis to distinguish cases factually similar to this from all other cases, it seems hard to believe that a rational basis exists for a statute that singles out this particular person's case by name from all other similarly situated persons. It has a bill of attainder-ish smell.

What if George W had interrupted his long August/Labor Day vacation in Texas in 2001 to study the warnings of Al Queda threats that had come to the attention of the White House via the intelligence community? Might 9/11/01 have been avoided? Did George W learn from this in interrupting his vacation to return to Washington to sign this special bill into law? What is the difference between these two situations in the priorities of George W? Could it be the political benefits he and the Republicans perceive? I wonder if Congress would pass a similar bill if a family member of a President or prominent member of Congress were in a similar medical situation as with this special bill.

As I've asked on a number of web sites, what is the constitutional basis for such a law? I know that conservatives shred the constitution whenever they believe it benefits them, but this is really grotesque.

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