Posted on 03/21/2005 12:05:39 PM PST by Wolfstar
What if the federal judge also dides against Terri?
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Sorry... I'm prohibited from giving you a truthful answer, because
it would be considered promoting violence against the *&#$@&
judge, and that's an absolute NO NO on FreeRepublic !!! ;-))
For sure they control the lower Federal courts. They can abolish or establish them as they see fit. I'd like them to abolish the ninth circuit. :)
Congress has the ability to define the jurisdiction of every federal court - except (at least in some instances) the supreme court. That is what this law did - it assigned jurisdiction in this matter to a federal court for review.
Oh, and the constitution prohibits "bills of attainder" that prescribe punishment to an individual. It does not prohibit laws that benefit an individual (although there is a valid argument to be had concerning the tradeoff between specificity and unintended consequences of broader bills).
This is a quick and dirty answer that is not based on a careful study of the bill or the issue, so this is subject to clarification or qualification when I consider it more carefully, but . . . .
There are two clauses that collectively might justify this legislation. The most important, which I do not believe has yet been mentioned in this thread, is Section 5 of the Fourteenth Amendment, which gives Congress power to enforce the provisions of (inter alia) Section 1 of the Fourteenth Amendment by appropriate legislation. Section 1, in turn, guarantees that no person will be deprived of life without due process of law. If there is a serious question about whether the process by which Terry Schiavo is being deprived of life comports with this provision, there is grounds for Congress to legislate under Section 5.
The "appropriate legislation" under Section 5 could easily include legislation pertaining to the jurisdiction of the federal courts.
The bottom line is that the enumerations of congressional power in Article I do not carry the day here. The Fourteenth Amendment might.
Where have you been? Try rereading the 14th amendment.
The 14th Amendment to the U.S. Constitution, section 1 of which reads:
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
"Terri's Law" granted the US federal courts power to review decisions taken in this case by the Florida state courts. The most frequent use of the 14th amendment, is by death row inmates who have been sentenced for capital crimes in state courts, and appeal to the federal courts, claiming the state process was so deficient as to deprive them of "life" without "due process of law".
Terri's Law is, without question, constitutional.
>>Doing it for a single individual is where the problem lies.<<
If that's where you see the problem, then there's no problem. There's nothing in the constitution prohibiting such actions, and I don't think either this court, the Court of Appeals, or the Supreme Court is going to hang any unconstitutional ruling on the idea of Congress having only expressed powers (i.e. can't do anything that's not expressly permitted). THAT would open up the floodgates of litigation to virtually everything Congress has done in the last 40 years. All one needs is standing to bring a case, and you're in.
Brave bump. :-)
If you're right, then I would be more comfortable with what Congress did.
BTW, people should not incorrectly assume that because I started a discussion on the Constitutional merits of this case, I'm in favor of the removal of Mrs. Schiavo's feeding tube. I am not.
Well that explains why the judge hasn't yet acted. The way the law is written, he has to consider the merits of the suit first before issuing injunctive relief.
Congress can establish and unestablish (is that a word?) federal courts inferior to the U.S. Supreme Court, indeed, but that's all.
The authority is in one of those hidden penumbras or the "Elastic Clause". Remember, the Constitution is an evolving document.
Reread the constitution. Congress IS the ultimate check on the federal courts.
Wrong. The federal courts get their power from the United States Constitution. The state courts get their power from their state constitutions.
I find it odd that none of the Freepers out there who are such high-minded "strict constructionists" in this case were using similar constitutional arguments to support the Florida Supreme Court's decisions (in favor of Al Gore) in the 2000 presidential election.
Try Article V, "No persons shall be... deprived of life, liberty, or property, without due process of law..."
The judge has ordered this woman's death. The federal courts have the power to determine whether she was accorded due process. Since she had no attorney, and was given no MRI, and is being essentially totured to death, I think a pretty good argument can be made that the answer to that question is "no."
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