Posted on 03/19/2005 12:50:50 AM PST by Dane
With Schiavo Subpoenas, Congress Is Testing the Limits of Its Power
By ADAM LIPTAK
Published: March 19, 2005
The Congressional subpoenas issued yesterday to the doctors treating Terri Schiavo, a brain-damaged Florida woman, were clever, in the way lawyers can be clever.
Subpoenas are designed to obtain testimony and evidence for a court case or a Congressional hearing. But the subpoenas issued by a committee of the House of Representatives required Ms. Schiavo's doctors to maintain what they said was a key piece of evidence - the medical equipment keeping her alive - "in its current and continuing state of operations."
It is true that subpoenas occasionally call for recipients to preserve relevant evidence. But that evidence is not usually a human life.
Similar subpoenas were issued to Ms. Schiavo's husband and to a hospice administrator. Another subpoena, to Ms. Schiavo, sought only her testimony.
Also yesterday, a Senate committee invited Ms. Schiavo and her husband to appear before it, noting pointedly that it is a federal crime to harm a person called to testify before Congress.
Legal experts across the political spectrum said these maneuvers tested the boundaries of legitimate legislative action.
"It's simply outrageous," said Charles Fried, a law professor at Harvard who served as the solicitor general in the Reagan administration. "It is abusive and disgraceful. Even a senator has an obligation to use his power honestly and not to engage in subterfuge and pretense."
In remarks to reporters yesterday, Representative Tom DeLay, Republican of Texas, said the measures were needed to save Ms. Schiavo from "an act of barbarism," referring to the removal of her feeding tube.
Experts in constitutional law and federal procedure said the Congressional actions were unprecedented.
"I can't think of any parallels," said Laurence H. Tribe, a law professor at Harvard who often supports liberal positions.
"McCarthy, for all his abuses, did not reach out and try to undo the processes of a state court," Professor Tribe said, referring to Senator Joseph McCarthy, whose cold war hearings into communism were widely viewed as Congressional overreaching.
Congress has the power to issue subpoenas in investigations, but that power has limits. Here, the House Committee on Government Reform has said it will hold hearings on "the long-term care of incapacitated adults."
That is "an absolutely legitimate subject for inquiry," said Patrick O. Gudridge, a law professor at the University of Miami. The "tricky question," he continued, is whether keeping Ms. Schiavo alive would aid that inquiry or even be relevant to it.
"Congress is pushing the outer edge of the envelope here," Professor Gudridge said.
Others said the subpoenas were simply illegitimate.
"You cannot issue a subpoena that interferes with a constitutional right," said Arthur Miller, an expert on civil procedure at Harvard, referring to what he said was Ms. Schiavo's right to die. "It's a blunderbuss. It smacks of desperation."
The Senate's invitation to the Schiavos, meant to bring a witness-protection law into play, also raises questions.
"The federal statute that makes it a crime to interfere with witnesses presupposes that there is some valid exercise of legislative power," Professor Tribe said. "It would be hard to think of one here."
He continued: "It's Congress trying to change the decisions of the state judiciary and violating the purposes of federalism. It's Congress trying to deprive someone of an adjudicated right by political edict in violation of due process of law."
Arthur L. Caplan, the chairman of the department of medical ethics at the University of Pennsylvania, said the Schiavo case had already received ample scrutiny.
"It has to be the most extensively litigated right-to-die case in the history of the United States," Professor Caplan said
The elitist know-it-alls are right, Congress is definitely treading on very thin Constitutional ice. A sneeze from SCOTUS (which may or may not have already happened) and the whole sorid affair will be over with in favor of the husband.
"You non-productive eaters must do your duty and die."
And so is starving a handicap women to death
What are so many afraid of ??
Why can't the public see Terry
Why has Judge Geer never seen Terry for himself or viewed the video tapes?
He's blind in more ways than one. I think it's more about ego now, though.
Send in the Marshalls. Now.
If Congress does not have the power to prevent an innocent person being subject to torture and execution, why the hell is it there?
Ahh yes where would we be without Harvard professors...
That's the way I see it.
And Vaseline, too
Where the hell do you Americans get all these dreadful bloody judges from?
We're going to send them back to that place. Soon.
There is one question that has been troubling me - is this woman on some kind of public assistance like medicaid or medicare? That would mean that we are actually fighting to keep spending taxpayers (our dollars) on social programs. Now in this case its pretty clear, once the feeding tube is in, removing it is an act of homicide and should not be tolerated. The reason I am asking this question though, is because I saw similar postings on some liberal blogs urging people to contact shillary clinton and give her an idea to make this a government assistance issue, basically call for increase in medicaid and giving everybody free health insurance because 'we need to take care of every Schiavo out there'.
It's kind of troubling. Imagine Hillary gives a speech where she urges to keep this woman alive, and then says that this is the perfect reason why we should expand medicaid and have universal health coverage? What do we do then? The way she has been spinning lately I wouldn't put it past her to pull a stunt like that. It's scary.
This is all in God's hands and the prayers need to continue...Hannity had a good show tonight and he is holding the legislators to their promise of getting this done for Terri by Monday....pray for Terri to hang on!
What's the feeling among 'ordinary' Americans? Surely, they do not support the starvation of an innocent woman.
It will be interesting to see how this one plays out.
I guess the ball is back in congress's court seeing as how the judge snubed his nose that them.
Does anyone know what the next move will be or will congress just hope for time to quickly pass seeing as how they have been called on what might have been a bluff of sorts.
Do they have the back bone to take the next step or do they even have a legal standing to try even if they do have the nerver?
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