# Terri Schiavo-Congress overstepping authority? **URL:** \ **Category:** Great Debates\ **Created:** [March 21, 2005, 9:58pm UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633 "2005-03-21T21:58:24Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![jeffh3000](https://avatars.discourse-cdn.com/v4/letter/j/34f0e0/32.png) [@jeffh3000](https://boards.straightdope.com/u/jeffh3000)\ **Post date:** [March 21, 2005, 9:58pm UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/1 "2005-03-21T21:58:24Z")
Putting aside any possible “ethical” debate of the Terri Schiavo case,it certainly seems to me that congress has overstepped their bounds, and the constitional concept of checks and balances between branches of government. They are also interferring with a state. While on **vacation** , congress members flew into town on the weekend for emergency session, [created and passed a bill in the middle of the night](http://www.npr.org/templates/story/story.php?storyId=4543879) to steal the Terri Schiavo from the state courts and reassign it to a federal district court, after it had already been in the federal system, including rejection from the US Supreme Court. As defined by ABC News: > [@ABC News](#): > > The law gave Schiavo’s parents the right to file suit in federal court over the withdrawal of nourishment and medical treatment needed to sustain their daughter I see this as an abuse of the powers of congress, by interferring with judical process. My question is should this even be within the powers of congress, and do you believe this type of action is unconstitutional? Also IANA lawyer, but isn’t there a constitional rule against legislating for one individual? ---
**Author:** ![Brutus](https://avatars.discourse-cdn.com/v4/letter/b/91b2a8/32.png) [@Brutus](https://boards.straightdope.com/u/Brutus)\ **Post date:** [March 21, 2005, 10:07pm UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/2 "2005-03-21T22:07:27Z")
Well said! When Congress starts passing laws to keep a mentally disabled woman from being starved to death, you know we are on a slippery slope. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 21, 2005, 10:47pm UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/3 "2005-03-21T22:47:31Z")
> [@jeffh3000](#): > > Also IANA lawyer, but isn’t there a constitional rule against legislating for one individual? Strictly speaking, no. There is a constitutional prohibition against a “bill of attainder” – i.e., declaring someone an outlaw by legislative fiat without a trial. But “private bills” happen all the time – for instance, before Timoth McVeigh was executed, Congress passed a private bill to strip him of his legal right, as an ex-Marine, to burial with military honors. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [March 21, 2005, 11:02pm UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/4 "2005-03-21T23:02:36Z")
I beleive it is in Congress’s power to do so (though I don’t think they should touch it), it is the courts power to decide if the law is allowed by the Constitution. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [March 22, 2005, 12:55am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/5 "2005-03-22T00:55:41Z")
> [@kanicbird](#): > > I beleive it is in Congress’s power to do so (though I don’t think they should touch it), it is the courts power to decide if the law is allowed by the Constitution. Congress can do anything they want (and they frequently do). You’re right: the threshold question for the court is whether this law is Constitutional. IAL, but I haven’t looked at this so don’t take this as gospel. The bill they passed gives standing to the parents to sue in federal court (i.e., it says that the court can presume that her parents have the requisite injury or right to sue that all litigants must have), and requires the federal court to examine, as if it had never been examined before, whether Terri Schiavo’s rights have been violated when her feeding/hydration tubes were removed. I don’t know what their “hook” is – what makes this a “federal” issue. I suspect (cynically) that the answer is: > [@Brutus](#): > > When Congress starts passing laws to keep a mentally disabled woman from being starved to death, you know we are on a slippery slope. Or, to paraphrase, a lot of people have opinions about the case, and we elect our politicians. [Query whether a persistant vegetative state is “mentally disabled.”] So Congress can take some action, which its members can tout to their constituents (“I tried to save Terri Schiavo!”), while a federal judge with lifetime tenure will affirm the Schiavo law’s constitutionality, and then can calmly and rationally affirm (de novo, of course) the considered judgments of the host of courts that have already examined the case. I would be shocked if the judge found the law unconstitutional. I would not be shocked if the judge instead ruled something like: “Defendant Michael Schiavo alleges that “Terri’s Law” is unconstitutional. Because I do not find that Mrs. Schiavo’s rights have been violated, I do not reach the issue of the constitutionality of Terri’s Law.” Your tax dollars at work. ---
**Author:** ![DoctorJ](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/doctorj/32/2904_2.png) [@DoctorJ](https://boards.straightdope.com/u/DoctorJ)\ **Post date:** [March 22, 2005, 1:45am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/6 "2005-03-22T01:45:04Z")
> [@](#): > > Query whether a persistant vegetative state is “mentally disabled.” This seems to be an important part of the talking points; it is not technically untrue, but it gives the image that we’re talking about, say, Corky from “Life Goes On” rather than someone who lacks cognitive function entirely. I can’t speak to the legality of the matter, but it seems to me that Congress has overstepped its bounds. If nothing else, its Republican leaders have shown that their “principles” regarding marriage, family, states’ rights, and generally staying the hell out of peoples’ lives are anything but. (Lest you think I’m letting the Democrats off, I’ll be sending some checks to some primary challengers in a couple of years.) ---
**Author:** ![zetafunction](https://avatars.discourse-cdn.com/v4/letter/z/57b2e6/32.png) [@zetafunction](https://boards.straightdope.com/u/zetafunction)\ **Post date:** [March 22, 2005, 1:57am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/7 "2005-03-22T01:57:12Z")
> [@Brutus](#): > > Well said! When Congress starts passing laws to keep a mentally disabled woman from being starved to death, you know we are on a slippery slope. “Mentally disabled”? What a misleading choice of words. Are you being intentionally intellectually dishonest? ---
**Author:** ![Mike\_H](https://avatars.discourse-cdn.com/v4/letter/m/ecd19e/32.png) [@Mike\_H](https://boards.straightdope.com/u/Mike_H)\ **Post date:** [March 22, 2005, 2:15am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/8 "2005-03-22T02:15:45Z")
Wouldn’t it be considered unconstitutional because it denies equal protection under the law to Terri (or to Terri’s husband,acting as her legal guardian because of her incapcity)? The law (text [here](http://thomas.loc.gov/cgi-bin/query/z?c109:S.686:) ) allows _only_ Terri’s parents to file a suit “on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States…” and \* only\* for circumstances relating to “…the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life” according to section 1 of the bill. Section 3 only provides for relief of such circumstances. In other words, nothing is provided to allow Terri’s husband (as her guardian) , process to obtain relief to alow her to die, as are her rights (i.e., right to refuse medical care). Sure, there are private bills to allow people special privledges (e.g., elevate one’s immigration status) or deny privledges otherwise available under the law(e.g., the McVeigh example above), but not at the expense of _denying_ other interested persons due process or other rights. Now, one may argue that nothing in this bill prevents Terri’s husband from filing suit under previously existing law, but if that were true, why is this bill necessary at all? Terri’s parents could also file suit under the same existing law ; but it’s my understanding that they couldn’t , hence this law. So again the question, doesn’t giving just one interested party over others to seek relief violate the equal protection clause? ---
**Author:** ![jeffh3000](https://avatars.discourse-cdn.com/v4/letter/j/34f0e0/32.png) [@jeffh3000](https://boards.straightdope.com/u/jeffh3000)\ **Post date:** [March 22, 2005, 2:27am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/9 "2005-03-22T02:27:12Z")
> [@Campion](#): > > I would be shocked if the judge found the law unconstitutional. I would not be shocked if the judge instead ruled something like: “Defendant Michael Schiavo alleges that “Terri’s Law” is unconstitutional. Because I do not find that Mrs. Schiavo’s rights have been violated, I do not reach the issue of the constitutionality of Terri’s Law.” > > Your tax dollars at work. At this stage at least, I doubt that any judge will rule or even comment on this law one way or another. They will more likely simply rule on the case. The exception would be if the legality of the law is challenged by the husbands lawyers. ---
**Author:** ![jeffh3000](https://avatars.discourse-cdn.com/v4/letter/j/34f0e0/32.png) [@jeffh3000](https://boards.straightdope.com/u/jeffh3000)\ **Post date:** [March 22, 2005, 2:42am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/10 "2005-03-22T02:42:43Z")
> [@brutus](#): > > When Congress starts passing laws to keep a mentally disabled woman from being starved to death, you know we are on a slippery slope.? Whether or not a brain dead person is even considered “mentally disabled” is not a clear distinction. However, whether or not she is, has nothing to do with how a non-judicial body has tried to enforce its uninformed opinion on a case that has been tried in 19 courts in 7 states, and if they even have a right to do so. It should also be noted that in 2003, Florida Gov. Jeb Bush pushed a law through the Florida Legislature that authorized the body’s feedings to resume, six days after a court stopped them. The Florida Supreme Court later ruled the law unconstitutional. ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [March 22, 2005, 3:12am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/11 "2005-03-22T03:12:22Z")
> [@jeffh3000](#): > > The exception would be if the legality of the law is challenged by the husbands lawyers. Which is what they’ve done. IMO, as a graduating law student, this law is blatently unconstitutional. The case went up and down the Florida state court system. The Florida Supreme Court ruled on it and the US Supreme Court denied cert. The case was over. This law attempts to reopen a finally decided case. That is a blatant violation of the seperation of powers. Every legal ‘talking head’ (even on FOX News) have said this is an unconstitutional law. ---
**Author:** ![Mike\_H](https://avatars.discourse-cdn.com/v4/letter/m/ecd19e/32.png) [@Mike\_H](https://boards.straightdope.com/u/Mike_H)\ **Post date:** [March 22, 2005, 3:12am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/12 "2005-03-22T03:12:34Z")
> [@jeffh3000](#): > > At this stage at least, I doubt that any judge will rule or even comment on this law one way or another. They will more likely simply rule on the case. > > The exception would be if the legality of the law is challenged by the husbands lawyers. Which of course, won’t happen, unless the District Court rules in the parent’s favor, under this law. Which is unlikely, since if there was any violation by “withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life” of Terri’s rights under the Constitution, or under federal law, the Federal courts would of ruled on it already (or at least agreed to review the case), which as far as I know, none have. Which makes discussing the constitutionality of this law a bit of an academic exrecise. But given that, it seems the law does violate the constitution by giving the parents a “do-over” that it does not extent to the husband. It also seems to violate federal/state jurisdiction by saying that the federal court shall have jurisdiction to "determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted. ". In other words, the law allows the District court to do an end-run around the state court’s decsion that wouldn’t normally be available to it. Particularly telling to me is section 7: “Nothing in this Act shall constitute a precedent with respect to future legislation, including the provision of private relief bills.”. It seems to me they were afraid if this law were actually upheld, it would set a precedent for Congress being able to write laws to usurp the authority of state courts. It seems the GOP are for state’s rights after all… just not in this case. ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [March 22, 2005, 4:27am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/13 "2005-03-22T04:27:08Z")
I’m glad somebody started a thread on the constitutionality question. I almost did the same, but there was such a rash of threads (multiply hijacked) on the Schiavo question, that it didn’t seem worth the bother. Perhaps we can keep this thread to legal/constitutional issues. Here’s hoping. The topic is unfortunate, but we don’t see this sort of extra-legislative weirdness every day, and it’s really worth hashing out. I’m personally very interested in the separation of powers & constitutional questions this law raises. I hope some actual experts – I’m not one of them – weigh in. From [this other thread](http://boards.straightdope.com/sdmb/showthread.php?t=307664&page=1), here’s some tidbits I’d found: [Try this on for size](http://www.cbsnews.com/stories/2005/03/20/opinion/courtwatch/main681785.shtml): > [@](#): > > QUESTION: Let’s start first then with Michael Schiavo’s expected arguments. Does he stand a chance of getting this law declared unconstitutional? > > ANSWER: Absolutely he has a chance. There are plenty of serious constitutional issues raised by this law. First, it applies only to one family and thus may create equal protection problems-- after all, why shouldn’t other people who want to keep their loved ones on life support over the objections of others not also received tailor-made legislation? Second, as Harvard Law School Professor Laurence Tribe points out, it arguably deprives Terri Schiavo herself of the constitutional right to “halt the unwanted bodily invasion by a tube” and does so without any due process to her (and her husband and guardian). Third, it raises big separation of powers problems and also federalism concerns-- the Supreme Court in particular hasn’t been receptive to federal intrusion into matters normally resolved by the states-- matters like guardianship laws. [Also](http://www.csmonitor.com/2005/0321/p01s03-uspo.html): > [@](#): > > Should a bill on Schiavo pass the Congress and be signed by the president, as expected, the case still faces judicial review - and a ticking clock. Last week, the Supreme Court rejected without comment a House committee’s emergency request to order the feeding tube reinserted while appeals were pending. > > “It would appear to be the kind of legislative grandstanding that Chief Justice Rehnquist, if he were up to speed and in good health, would swat away in an instant,” says Patrick Gudridge, a law professor at the University of Miami. SDMB lawyers, please weigh in. Anyone, please post any found legal analysis by actual lawyers and legal scholars. ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [March 22, 2005, 5:40am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/14 "2005-03-22T05:40:40Z")
> [@zetafunction](#): > > “Mentally disabled”? What a misleading choice of words. Are you being intentionally intellectually dishonest? Surely, just habit, no intention. I should note that conservative legal scholars are not tremenndously impressed with the issues here, especially in regards to how they would square with the position that Roe is illegitimate: [http://volokh.com/archives/archive\_2005\_03\_20-2005\_03\_26.shtml#1111444673](http://volokh.com/archives/archive_2005_03_20-2005_03_26.shtml#1111444673) ---
**Author:** ![Hentor\_the\_Barbarian](https://avatars.discourse-cdn.com/v4/letter/h/8edcca/32.png) [@Hentor\_the\_Barbarian](https://boards.straightdope.com/u/Hentor_the_Barbarian)\ **Post date:** [March 22, 2005, 12:27pm UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/15 "2005-03-22T12:27:32Z")
I saw this note on a blog, but it raises an interesting point that has been skipped by all the major media covering this topic. Don’t you need a quorum to pass a bill? [HTTP://UPYERNOZ.BLOGSPOT.COM/2005/03/QUORUM.HTML](HTTP://UPYERNOZ.BLOGSPOT.COM/2005/03/QUORUM.HTML) > [@](#): > > as rude pundit noted, the “unanimous” senate vote last night approving the terri schiavo bill was cast when exactly three senators were in the room. > > over in the comments of his loaded mouth tas notes that Article I, Section 5, Clause 1 of the constitution states: > Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.(emphasis added) > i think tas is right. i think the statute is unconstitutional. > > i wonder if any other statute has been overturned on these grounds before. > > of course, if it is valid, think of the fun we could have! if the president just gets a single senator and a single representative to sneak into the halls of congress in the dead of night, the three of them can unanimously pass any crazy thing they want! [HTTP://WWW.WASHINGTONPOST.COM/WP-DYN/ARTICLES/A51402-](HTTP://WWW.WASHINGTONPOST.COM/WP-DYN/ARTICLES/A51402-) > [@](#): > > The Senate, operating under unanimous-consent rules, passed the legislation yesterday afternoon with no debate and with only three members present. Is this accurate? ---
**Author:** ![SpartanDC](https://avatars.discourse-cdn.com/v4/letter/s/b2d939/32.png) [@SpartanDC](https://boards.straightdope.com/u/SpartanDC)\ **Post date:** [March 22, 2005, 9:35pm UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/16 "2005-03-22T21:35:52Z")
> [@Hentor the Barbarian](#): > > I saw this note on a blog, but it raises an interesting point that has been skipped by all the major media covering this topic. Don’t you need a quorum to pass a bill? It’s accurate and it’s _totally_ legal. The Senate passes things by unanimous consent almost every night it’s in session. The rules of both chambers, I’m fairly sure, require the minority side to be filled in on when the chambers will be in session. In fact, I think it has to be announced on the floor the day previous. (I’m not a parliamentarian, but I’ve covered both the House and Senate floors as a reporter, and I don’t remember a single time where they didn’t end the session by saying when they’d reconvene.) As for the House, they had a majority-plus-one at least of the members there (though not by much) so the actual passage of the bill is totally up to snuff in both chambers. ---
**Author:** ![monica](https://avatars.discourse-cdn.com/v4/letter/m/a183cd/32.png) [@monica](https://boards.straightdope.com/u/monica)\ **Post date:** [March 23, 2005, 12:26am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/17 "2005-03-23T00:26:01Z")
A problem with having our legislative body elected\* is that one of the main concerns of our legislators is getting re-elected. Thus, of course they would do anything possible to get a piece of such a publicized case. Just watch all of them in the media coverage- you can see congessmen four deep, stanidng in line to get on the news. They want that facial recognition. Therefore, at this point, it doesn’t even matter what the legislators _think_ should be done- what matters is that they get seen by their voters. And i think that that is entirely the wrong motivation to be dealing with a case like this. [sub]\*Note: I am NOT advocating having a non-elected legislative body[/sub] ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [March 23, 2005, 1:12am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/18 "2005-03-23T01:12:03Z")
Both Santorum and DeLay have both now claimed that the federal court erred in: 1. not replacing the tube 2. not retrying the case > [@](#): > > House Majority Leader Tom DeLay, R-Texas, called the judge’s decision disappointing. > > “Congress explicitly provided Terri Schiavo’s family recourse to federal court, and this decision is at odds with both the clear intent of Congress and the constitutional rights of a helpless young woman,” DeLay said in a written statement. > > “Section two of the legislation we passed clearly requires the court determine ‘de novo’ the merits of the case – or in layman’s terms, it requires a completely new and full review of the case. Section three requires the judge to grant a temporary restraining order because he cannot fulfill his or her recognized duty to review the case ‘de novo’ without first keeping Terri Schiavo alive.” In other words, far more than simply determining the court’s jurisdiction, Delay believes they told the court how it should rule on several issues. I’m no legal expert, but I have a hard time seeing how Congress can have the authority to order Whittenmore to do more than he’s done. ---
**Author:** ![Mike\_H](https://avatars.discourse-cdn.com/v4/letter/m/ecd19e/32.png) [@Mike\_H](https://boards.straightdope.com/u/Mike_H)\ **Post date:** [March 23, 2005, 1:30am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/19 "2005-03-23T01:30:01Z")
Guess ol’ Tom needs to actually read the bill he helped pass: > [@](#): > > After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. “After a determinition of the merits of a suit… such…relief as _may be necessary_”… Guess Mr. Delay took it as a given the crock of shit the parents have been perpetuating in the courts had merit. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [March 23, 2005, 2:18am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/20 "2005-03-23T02:18:50Z")
DeLay’s theory likely is that the court cannot provide a full consideration of the issues (i.e., a full retrial, with live testimony, etc.) unless it takes steps to prevent the issue from becoming moot through her death. And since the bill requires the court to examine the case de novo, DeLay must have assumed that the court would go straight to trial, issuing a TRO to prevent mootness. The problem with that, though, is that apparently the district court judge relied on something we lawyers like to call The Law to determine whether the case meets the standards for issuance of a preliminary injunction. Broadly, that would require the Schindlers to demonstrate a likelihood of success on the merits at trial – i.e., the Schindlers would have to show that at trial, they are likely to be able to prove that Terri’s rights have been violated. Because (presumably) they can’t do that, the court has declined to issue a preliminary injunction or TRO. ( **Mike H** , you put it much more succinctly than that, except that I don’t think DeLay gives a rat’s patootie about whether the Schindlers’ unscientific theories are correct – I think DeLay loves loves loves the camera.) If DeLay is going to get mad at anyone about what the judge did, he ought to get mad at himself for not drafting a better bill. Of course, if he’d drafted the bill that he apparently wanted to, the district court would have had no choice but to void it for violation of separation of powers. [Next page](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633.md?page=2)