Boehlert: Congress wrong to be involved in Schiavo case

WSTM.com ^ | 3/21/05 | Bob Joseph

[Dont_Tread_On_Me_888]

BINGHAMTON, N.Y. An upstate Republican congressman says federal lawmakers shouldn't have gotten involved in the Terri Schiavo (SHY'-voh) case.

Sherwood Boehlert of Oneida County didn't return to Washington for today's vote on a bill to give the brain-damaged woman's parents the right to ask a federal judge to order doctors to reinsert her feeding tube.

Boehlert told Binghamton radio station W-N-B-F that -- in his words -- "Congress has no business injecting itself" into the case. He said he would not have voted for the bill had he been at the unusual early-morning House session.

Boehlert noted the Schiavo case has been before Florida state courts many times over the past several years.

Boehlert said the decision to have the House vote shortly after midnight was a "crazy way to schedule the whole thing." He said the only way he could have made it back to Washington in time for the vote was to charter a plane -- which he said he wasn't about to do.

(Bob Joseph, WNBF, Binghamton)

[Hand em their arse]

Well, truth be told I wasn't here in time to see comment #7 before it was deleted so I don't know what was said in it. But, your post just seemed very extreme when I read it, I guess I didn't expect it from you having been on many of the same threads you've been on and seen alot of your posts in the past.

However, after reading your "about page", maybe this was one of those "99% of the timers..." ;-)

[walden]

"Convicted murderers under a sentence of death have a right to appeal that sentence to federal court. Unfortunately, Terry Schiavo is innocent of any crime and her death sentence was handed down by a civil court judge, so she has no such right of appeal. "

I asked if that bothered you at all, and you did not respond to the question. I'll take that as a great big NO, IT DOESN'T BOTHER ME AT ALL.

Thank you for your (non)response.

[thoughtomator]

Oh, he made an assinine comment along the lines of "if you really believe in the religion you claim, why don't you want her to join Jesus in heaven?". So I asked why he didn't do the same for himself... haven't got an answer on that yet.

[ex 98C MI Dude]

Since when does a court decision come under the purview of states rights? The State of Florida, through the offices of its Legislative and Executive branches, determined that this woman should be allowed to live. A court decided that they were usurping some imagined power of the judiciary. The legislative and executive branches, by design, are allowed to make laws and to change laws. Courts are now holding that this is not so, that a court order is inviolate, but legislative intent is not.

[Tribune7]

That the job of SCOTUS, not Congress.

Actually, it's the job of all branches. Further it's the job of Congress and the Executive to check the Judicial when they spin out of control.

The Constituion does not start with "We the Judges"

[mlc9852]

Well, when Gov. Bush signed legislation (which I admit I haven't actually read) allowing more time for Terri, the state supreme court ruled it unconstitutional. Do you believe the state supreme courts or the US supreme court correctly interprets laws all the time? Some of the time? Only when you agree with them? People who see the law as the end all scare me. Laws are always subject to interpretation, for right or wrong. And if you don't think the congress has any business messing with states' rights, then the baseball hearings must really drive you crazy!

[KC_Conspirator]

Boehlert is full of BS. I guess then he would not have voted for the troops to be called in to escort black children to school in the 1960's south because of states rights? Aoccording to his statements, that is what he would have done.

And BTW - you don't "bypass" SCOTUS by passing "new law". That is the way it works. Congress acted on the behalf of an individual's rights which were being trampled.

[agrace]

Actually, the Supreme Court declined to review the case.

[garybob]

Now, Congress is trying to bypass SCOTUS. Republicans are acting like Democrats. That is the problem.

In light of Article III, where is the bypass?

BTW, George Bush signed it, are you going to take his heart-of-gold out of your tagline?

[Publius Valerius]

Well, let's see:

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution...

Nope, nothing here--unless you want to try to make a case--but certainly nothing jumping to mind.

...the laws of the United States...

Ok, we've got a law, but the question now becomes whether that law is valid. What authority does Congress have to enact laws? Article I, Sec. 8. Let's go there.

The Congress shall have power to lay and collect taxes...

Nope.

To borrow money on the credit of the United States...

Nope.

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes...

Nope.

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States....

Nope.

To coin money...

Nope.

To provide for the punishment of counterfeiting the securities and current coin of the United States...

Nope.

To establish post offices and post roads;

Nope.

To promote the progress of science and useful arts...

Nope.

To constitute tribunals inferior to the Supreme Court...

Nope.

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations...

Nope.

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water...

Nope.

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

Nope.

To provide and maintain a navy;

Nope.

To make rules for the government and regulation of the land and naval forces;

Nope.

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

Nope.

To provide for organizing, arming, and disciplining, the militia...

Nope.

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States...

Nope.

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers...

Nothing applies.

So you've got an invalid law, and I certainly don't think you can argue that an invalid law would grant jurisdiction, and even if it did, it should be unconstitutional on the merits.

so what's your argument?

[Sola Veritas]

"Because it has been improperly made a federal issue doesn't mean we should do the same here."

I can't agree with your assesment. Judicial Tyranny must be stopped. Once it is, then we might get back the balance to government that should be there. If I have to temporarily step on "State's Rights" (which really haven't existed since the Civil War) then I will do so; I am pragmatic.

In order to save the union, Lincoln went way beyond the constitution and violated it. The vast majority consider him our greatest president ever. I will take a pragmatic page from his book.

[Dont_Tread_On_Me_888]

What about the supremacy clause?

There was no conflict between Federal law and Florida law here. The Republicans just did not like the outcome, so they wrote new law (in the fine tradition of tactics from the Democrats' playbook).

[dennisw]

It sounds to me like the judge is upholding the law that's on the books -- isn't that what we want our judges doing?!?!

Where is that piece of paper that has Terri Shiavo's living will written on it? This judge is accepting Michael Shiavo's word for this all. That Terri once said in passing she did want to kept alive. A fair judge would not take M Schiavo's word for this. Especially when her family is willing to take care of her.

[Publius Valerius]

You're darn right about the baseball hearings. Those people make me so mad sometimes!

I don't think that the courts always get it right. In fact, I generally think they are wrong more often than they are right, but we have a system of rules and laws and I think those have to be followed, even when things don't always go the way that we like.

We can certainly try to change the law, and I think Florida's government can certainly take steps to changing rules about guardianship or removal of feeding tubes or euthanasia or whatever, but I think that's part of the political process, not circumventing the law.

[thoughtomator]

To constitute tribunals inferior to the Supreme Court

Go look up the word "constitute" and you will have an answer.

[Nick Danger]

This case was argued repeatedly over many years in Florida.

True, but there are two extremely peculiar decisions — findings of fact — about the case that really do cry out for someone else to take a look.

The first concerns Terri's wishes in the event she were to become incapacitated. She left no written instructions. We are therefore left with a dispute within her family concerning what she would have wanted. The husband says this, the parents say that, off to court we go.

It the job of judges to decide these things, and this judge decided — based on the word of the husband — that it is a "fact" that Terri would have preferred death in this circumstance.

So far as I know, once a judge has determined this to be a "fact," the appellate courts do not ever look at it again. So all appeals proceed on the basis that it is a "fact" that Terri Schiavo would prefer death here.

But is it a fact that withstands any scrutiny? The husband has a million dollars awarded in a malpractice suit, ostensibly to provide for medical treatment for his wife; but it's all his to do with as he pleases were she to die. And there might be life insurance as well; we don't know. But we do know that the husband has a powerful financial interest in seeing his wife dead. And without any written will, it's a "he said/they said" between the husband and the parents as to her wishes. So the decision that it is a "fact" that Terri would prefer death, based on the husband's testimony, contradicted by the parents, strikes many people as extremely controversial. At best it is arbitrary... making a decision for the sake of making a decision. Granted that is what we pay judges to do. But we shouldn't lose sight of how weird this decision is.

The second "fact" concerns the likelihood that Mrs. Schiavo's condition might improve. The press has described her as everything from "brain dead" to "in a coma." There are doctors who say she in a "persistent vegetative state" and there are doctors who say they've seen worse cases that were rehabilitated. There is testimony from nurses — apparently ignored by the judge — that she says things like "help me." For sure, her eyes are open, she moves around, she smiles, and she makes noises. We've seen the videos. Once again, the judge "decides" and so it becomes a "finding of fact" that she is in a "persistent vegetative state."

Given the two "facts," the judge's decision to pull the feeding tube makes perfect sense from a legal standpoint.

The problem is with the "findings of fact." In both cases, the testimony is contradictory. The judge, quite arbitrarily, came down on the side that leads to her death.

A lot of people are uncomfortable with that. This judge is not qualified to decide for himself whether Mrs. Schiavo is in a "persistent vegetative state." He heard testimony that she is, and he heard testimony that she isn't. In doubt, this judge erred on the side of death. He did the same thing in deciding whether to believe the husband or the parents concerning Terri's wishes. Both times, he came down on the side that leads to an ineluctable legal decision that she should die. Yet everyone can see that he was basically making two arbitrary decisions concerning whom to believe.

Judges do that every day. It's their job. But when two rather peculiar arbitrary decisions lead to starving someone to death, maybe it's time to call in the replay official.

It is common for criminals sentenced to death by state courts to get a federal review of their cases. When the government is going to kill someone, you would like to make sure it's not making a mistake. Surely this woman deserves a review that a convicted criminal could get.

[kate in carolina]

Got news for you. We're all certain to die. My facts were regarding the right of states to establish their own right-to-die laws without federal intervention, and the fact that Congress selectively chose this case -- one out of thousands -- to make a big media show out of. Reeks of exploiting a family tragedy for political benefit.

BTW, I personally think it is much worse to starve a conscious baby over the objection of its mother than a person in a persistent vegetative state whom the courts have ruled would not want to continue life in her current situation.

[Shethink13]

Oh, from every press report I have heard the law in Florida defers to the 'custodian' in this case it's still her husband.

So the law defers to the 'custodian', huh? And that's absolute, with no review or discretion by the courts? So, I guess if OJ had just put Nicole Simpson in a coma rather than kill her, it would be his decision as 'custodian' to decide her fate.

You understand the utter nonsense that is, don't you? There are many Florida laws that have been violated by this judge, among them the refusal to appoint a guardian ad litum, which is required by law due to the husband's obvious conflict of interest, and appointing himself, against Florida law, her guardian.

[Dont_Tread_On_Me_888]

Actually, the Supreme Court declined to review the case.

Let's be realistic here.

When SCOTUS declines to review a case, how much input does SCOTUS do before they decide not to review a case?

They don't flip a coin, you know. They did tons of research in order to make the decision NOT to review the case.

Now come on . . . you knew that.

[Publius Valerius]

Constitute: to form or compose.

you're right, I've got my answer. No power.