# 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:** 9\ **Page:** 2
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [March 23, 2005, 3:04am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/21 "2005-03-23T03:04:05Z")
Can a lower Federal court declare an act of Congress unconstitutional? Can that be the first step in the process? I.e., if I were going to court to seek relief under some law that is probably unconstitutional, can Mr. Federal Circuit Judge just say, “I’m not going to listen what the two sides have to say because the law is unconstitutional anyway.” Or does one of the parties have to make that argument first? ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [March 23, 2005, 4:41am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/22 "2005-03-23T04:41:59Z")
> [@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. I know! And don’t get me started on those [activist judges](http://www.csmonitor.com/2005/0323/p02s02-ussc.html) legislating their ideology from the bench! ---
**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, 6:16pm UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/23 "2005-03-23T18:16:58Z")
> [@BobT](#): > > Can a lower Federal court declare an act of Congress unconstitutional? Can that be the first step in the process? > > I.e., if I were going to court to seek relief under some law that is probably unconstitutional, can Mr. Federal Circuit Judge just say, “I’m not going to listen what the two sides have to say because the law is unconstitutional anyway.” > > Or does one of the parties have to make that argument first? Yes, a federal district court can declare an act of Congress unconstitutional. Yes, that is usually the first step in the process. (So can a state court, for what it’s worth.) The question you haven’t asked is who is bound by a ruling of a district court that a law is unconstitutional. (The answer? Almost no one.) [FYI, it’s not Mr. Federal Circuit Judge – Circuit generally refers to the federal appellate level, the Circuit Courts of Appeal. It would be the Honorable US District Court Judge.] One of the parties will make the argument first. It would take extraordinary circumstances for a district court to rule on the constitutionality of a law without argument from the parties. That’s not to say, however, that the parties have to come up with the notion themselves. The Court could “invite” the parties to brief and argue the issue. In several cases I’ve seen, both at the trial and appellate levels, the Court has ordered the parties to brief an issue. In other cases, the Court has appointed an “amicus” (friend) to brief an issue to the court. Bottom line, though, a Court generally doesn’t rule on an issue unless it has permitted the parties to argue it. To do otherwise simply invites the appellate court to return the case to the trial court with orders to permit the parties to be heard on the issue. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [March 23, 2005, 6:23pm UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/24 "2005-03-23T18:23:03Z")
> [@Apos](#): > > Both Santorum and DeLay have both now claimed that the federal court erred in: . . . > > 1. not retrying the case In that case, the Senators should blame Mrs. Schiavo’s parents, who didn’t ask the federal court to retry the case, just for a determination that the process in state court deprived them of their due process rights. (See [the Federal Court Complaint (PDF File).](http://news.findlaw.com/hdocs/docs/schiavo/32105fedmot.pdf)) I don’t know what the federal court would have done if the parents demanded a full retrial of the factual issues, but the fact is that they didn’t ask for one so the court couldn’t grant one. ---
**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 31, 2005, 12:27am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/25 "2005-03-31T00:27:53Z")
I thought I’d close the circle on the OP’s question: According to [11th U.S. Circuit Court of Appeals](http://story.news.yahoo.com/news?tmpl=story&cid=514&e=1&u=/ap/20050330/ap_on_re_us/brain_damaged_woman_56) today, the congress and the executive did indeed violate their authority. “Terri’s Law” is unconstitutional because it violates the separation of powers. > [@](#): > > The judge went on to deliver a scathing attack on politicians who got involved in the case, saying the White House and lawmakers “have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people — our Constitution.” [Text of the decision (PDF)](http://news.findlaw.com/hdocs/docs/schiavo/33005ca11rhrng2.pdf) ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [March 31, 2005, 1:48am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/26 "2005-03-31T01:48:16Z")
> [@Campion](#): > > The problem with that, though, is that apparently the district court judge relied on something we lawyers like to call The Law. Yeah, The Law can be pretty inconvenient sometimes (snicker). Last I heard, not Congress, not the President, nobody could order the Supreme Court to do anything. Balance of power, checks and balances, and all that. By the way, is that the same Tom DeLay who “pulled the plug” on dear old dad after only 29 days??? ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [March 31, 2005, 2:34am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/27 "2005-03-31T02:34:42Z")
> [@SteveG1](#): > > By the way, is that the same Tom DeLay who “pulled the plug” on dear old dad after only 29 days??? Yes, but that was _different_. Don’t ask why. It just _was_. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [March 31, 2005, 4:01am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/28 "2005-03-31T04:01:33Z")
> [@jeffh3000](#): > > 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: > 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? Congress can pass any law that is not specifically in contradiction with the constitution. They can collectively call upon a single person to testify for whatever reason suits their fancy. I can’t say I appreciate attempts to use this for political gain. This is a person’s life and should be above partisan bickering. All they asked the court system to do was to review all available evidence. As far as I can tell, that has not happened. It appears to me that the recent court rulings have been a review of process and not content. It is not beyond the scope of power for Congress to intervene in court matters. If Congress has no power to counter the judicial process then the balance of government power ceases to exist. Judges in higher courts hold a unique position in public office in that they cannot be removed through political process. Without the powers granted to Congress it would be impossible to correct for the decisions brought down by the court. Judges are not infallible despite their unalienable tenure. Most landmark decisions by the Supreme Court are split among its members. In effect, a group of 4 unapproachable judges can create new law through interpretation of the constitution. Everything the Supreme Court, Congress, and the Federal Court system do affects both individual citizens and State sovereignty. To say this is an injustice depends which side of the Terri Schiavo fence you sit on. I’m neither a lawyer nor a doctor but when a human life is involved I expect both professions to entertain any potential treatment as viable until it is proven otherwise. I have no idea if the new treatment proposed by Terri’s biological family is total crap or the greatest thing since sliced bread. I would expect the court system to make the effort to find out. It doesn’t appear to me that recent court decisions have reviewed anything beyond earlier court decisions. This is not a dig against lawyers but I’m confidant one can explain why procedures were followed to the highest degree and that justice has been served in the review process. However, I cannot escape the sense that process is the purpose of law. ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [March 31, 2005, 4:01am UTC](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633/29 "2005-03-31T04:01:54Z")
> [@](#): > > The parents of a brain-damaged woman petitioned the U.S. Supreme Court on Wednesday night in another legal effort to have their daughter’s feeding tube reinserted. > > The emergency appeal by Bob and Mary Schindler requests that a temporary restraining order force the reinsertion of Terri Schiavo’s feeding tube, while lawyers file a further appeal. Source: [http://www.cnn.com/2005/LAW/03/30/schiavo/index.html](http://www.cnn.com/2005/LAW/03/30/schiavo/index.html) **Breaking News: U.S. Supreme Court refuses appeal from Terri Schiavo’s parents who sought to have her feeding tube reinserted.** [Previous page](https://boards.straightdope.com/t/terri-schiavo-congress-overstepping-authority/295633.md?page=1)