Posted on 03/23/2005 8:39:18 PM PST by logician2u
Rule of Law Damaged by Schiavo Bill
by Sheldon Richman, March 23, 2005
The events surrounding the life of Terri Schiavo are tragic enough. Now congressional Republicans and President Bush have made things worse. In one weekend they disabled federalism, the separation of powers, and the rule of law. These principles were embraced by the Founding Fathers because they tend to protect individual liberty. By tearing them down, the Republican leadership jeopardizes our freedom. How ironic that this comes at the hands of the self-proclaimed party of limited government.
It is beyond dispute that the legal issues involved in the Schiavo case are state issues. That has been the rule for more than 200 years. It is what has made the American system a federal system. The point of federalism is to decentralize power, and its rationale is that concentrated power is dangerous -- always and everywhere -- regardless of which political party rules.
Years ago Terri Schiavo went into what many doctors describe as a persistent vegetative state without hope of recovery. She can breathe, but she cannot take food or water on her own. Her husband has sought to remove the feeding and hydration tubes in order, he says, to comply with her express wish not to live this way. Her parents have tried to block him from having the support terminated. The Florida state courts have consistently sided her husband. The U.S. Supreme Court earlier declined to review the case because no constitutional issues are involved.
Last weekend the Republican-controlled House and Senate hurriedly passed legislation permitting Terri Schiavo's parents to request the federal courts to take a fresh look at the case -- as if the state court had never ruled. President Bush signed the bill. The case was heard Monday, but the judge refused an emergency order to reinsert the tubes pending a full hearing. The federal court of appeals affirmed the judge's order and the parents are appealing to the U.S. Supreme Court.
Much could be said about this sad case. Terri Schiavo had no living will directing that she not be sustained artificially. We have only her husband's and a couple of other people's testimony, and he may have a conflict of interest involving money earmarked for her care. Others testified that she never expressed such a desire. Yet a trial judge found "clear and convincing" evidence that she did not wish to live this way. Maybe the Florida law has defects, but that's a subject for another day. My focus here is on Congress's and the president's intervention. It was extraordinary and ominous. The bill singled out one case in an area where federal authorities have no constitutional jurisdiction. This makes no sense. At any given time, many people are in medical conditions similar to Terri Schiavo's. In most of these cases, the family members agree to end artificial respiration, feeding, and hydration. No doubt in some cases there is disagreement, but the matter is settled out of the news headlines.
Will Congress now intervene in all these cases? If not, why not? Aren't those lives precious too? That the Republicans intervened in this case, which has been taken up by the anti-abortion lobby (among others), hints that cynical political calculations were at work. A memo circulated among Senate Republicans called the Schiavo matter "a great political issue," indicating its appeal to the party's religious supporters. Is this payback for 2004?
In the end, the bill probably won't prolong Terri Schiavo's life. But it may well cut short the rule of law. It is no defense of the Republicans to say that a young woman was being starved to death. Congress has no constitutional authority to exercise arbitrary power any time an emergency catches its attention, especially where there are no federal or constitutional issues at stake. That it is legally restrained from doing whatever it wants is part of what we mean by the rule of law. That's why its weekend actions are ominous. We must fear for the precedent it has set.
Both the president and members of Congress take oaths to preserve and protect the Constitution. Any time they pass and sign a law thinking they will leave the matter of its constitutionality to the courts, they violate their oaths. The American system has a division of powers, which was violated in this case, but when it comes to abiding by the Constitution, there is no division of labor.
Sheldon Richman is senior fellow at The Future of Freedom Foundation, author of Tethered Citizens: Time to Repeal the Welfare State, and editor of The Freeman magazine. Send him email.
There has been some terrible lawyering this week. But I can't fault the Schlinders' attorneys for it. The intent of the Palm Sunday compromise was to slow the process down. It has only exacerbated the legal process that will now culminate with Terri Schiavo's death. They have been on the clock since last Friday and are doing yeoman's work but it does not lend itself to fashioning the best legal arguments.
Congress's law provides no standards for granting injunctive relief. They could have given some guidance but didn't. Therefore, the federal standards in place are to guide the judge. One of the prongs of the four prong test is a substantial likelihood of success on the merits. The Schinlders raised three claims all dealing with procedural due process. I am sorry to say none would have been meriroious on a de novo review.
The best argument that by finding on flimsy evidence that Terri Schiavo has expressed a desire for lack of life support, Greer has denied her substantive due process right to life under the 14th amendment. This was not done and Whittemore cannot rule on arguments not before him.
Further, the Schindler's never asked for relief under the All Writs Act which was tailor made for this situation. Since that issue was not before him, Whittemore didn't abuse his discretion. These arguments were raised in the 11th Cicurit and they should have recognized Congress's intent and fashioned a remedy in equity but I can't blame them for not doing so.
Since I have no ability to determine the existence of any of the infinite number of possible gods, I don't assume any of them either exist or don't exist.
I am an attorney and I would like to refrain from Monday morning quarterbacking. I agree that they are to be applauded for their efforts, even if the result will not be what we wish for.
You obviously think an alleged diagnostic done later in the time line applies to every moment after the accident.
Then why would your diety decieve people by allowing hundreds of different denominations that claim to follow him exist? Each claiming the other sectarian will go to hell and the common man left in the middle with no objective means to tell them appart?
Oh, and Terri's parents have offered to furnish rehab to Terri to try to get her to swallow again. The Greer Ghoul and Michael Monster have refused.
So when it comes to religion, you're simply uninformed . Thanks for speaking out.
Not if the real god completely unknown and is testing us to see if were are not gullible and refuse to follow the false gods known to man. In this case, you'll be the one burning.
Another caller pointed out that Abraham Lincoln's assassination was on Good Friday.
That brought up a what if. What if Mrs. Shiavo died this Friday?
(Does Mrs. Shiavo have to be Jesus to be important in the eyes of God?)
Ya know, people say that Americans know geography only because of our wars.
Are events today a way of teaching us God's word?
What is the next lesson?
So show me the proof of your god? Can't? Thought so. Went it comes to religion you just a scared little fool who is afraid he's going to burn in hell if he uses his reason. Thanks for speaking out and sharing!
OH? So Methodists think Baptists are going to Hell. That is just not true. There are all stripes of Freepers as well. It has to do with the doctrine of free will.
Where can I learn more about this theory?
It's spelled "Free will." We get to choose good or evil. By it's fruits we know it.
I see you seem to have forgotten a guy named Satan, too.
My, you truly are uninformed about this subject. Maybe you should keep your day job?
I don't know, I just made it up.
Show me the forth dimension. Show me an atom. Show me love. Show me thought.
Oh, I'm not asking for any MMQB'ing. Actually, I have a lot of emphathy for those guys. Essentially, they're doing what the Bush v Gore lawyers had to do, but they have about 1/1000th of the resources. I've begun to see in the media some criticism of their work by those in the conservative camp. It got me to thinking that these guys have to be in over their head or at least up the their limits.
"then living without a feeding tube should be no problem."
The judge didn't "just" order the removal of the feeding tube, he specifically ordered that Terri be given NO nourishment and NO hydration -- by ANY means.
According to the jugde people aren't even allowed to try to give Terri icechips, or water, even if she could swallow it.
The Nazi deathcamps moved to Florida.
So it's not based on any rational motive. That brings us back to where we started. Is that really how you lead you life?
"blah blah blah blah blah "
How accurate your statement on your home page is. Summing up all your posts so well -- except the "blah, blah" is less insulting than your posts.
Being offensive is not a virtue.
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