Trial By Legislation Attorney Andrew Cohen analyzes legal issues ...

[BrklynLiberal]

Some straightforward Q & A's

After lurking as a local and regional issues for years, the Terri Schiavo case suddenly has mushroomed into a grand constitutional showdown with national implications. Because legal and political developments are occuring at an exceptionally fast rate, and because the dynamics of the current legal dispute are so extraordinary, it's worth a quick look at some of the fundamental questions that are likely to arise over the next few days, as well as my best guesses as to what some answers will be.

QUESTION: First, some context and perspective. How unusual is this scenario, this mix of legal and political agendas, this confrontation between Congress and the courts over the outcome of a single case?

ANSWER: It is so rare that you probably have to go back to the Civil Rights era of the 1950s and 1960s to find a similar situation where there was such a blatant power struggle between the federal government and a state and between politicians and judges. Even the Florida Recount struggle that tainted the presidential election of 2000 did not rise to this level of open combat between the two branches of government. And I say that, and everything else below, acknowledging at the outset that this is a tragic case in which there are, or should be, no winners or losers regardless of the outcome. It is so sad that a private family drama has to play itself out on the most public of stages, with people in critical moments of their lives using and being used by politicians to further one agenda or another.

QUESTION: Step off the soapbox for a minute and give me the facts. So Congress is on the verge of passing legislation about the Schiavo case that President Bush is almost certain to sign into law. First, what does the legislation actually say?

ANSWER: The draft legislation passed around Saturday evening, the "compromise" that legislators say they will enact and then present to the President, starts off with the words "for the relief of the parents of Theresa Marie Schiavo." The bill would give the U.S. District Court for the Middle District of Florida jurisdiction "to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right... under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." But it would specifically not "confer additional jurisdiction" on courts to hear disputes about assisted suicide or "create substantive rights not otherwise secured" already in federal or state law.

The proposed law also gives Terri Schiavo's parents procedural help. It gives them standing to start a case on behalf of their daughter in the Middle District of Florida and it requires the federal trial judge to determine "de novo any claim of a violation of any right" Terri Schiavo may have. It also requires the federal courts to push the case to the front of the litigation line and requires the federal courts to issue "such declaratory and injunctive relief as may be necessary to protect the rights of" Schiavo." The law gives Schiavo's parents, or "any other person who was a party to State court proceedings relating" to the case, to file a lawsuit within 30 day.

QUESTION: What does all of that mean? Explain it to me like I'm a fifth-grader.

ANSWER: It means that Congress has literally made a "federal case" out of the Schiavo dispute. It means that Schiavo's parents now have a right to assert essentially the same claims they already have asserted in state court in Florida in a new forum-- federal court-- and applying federal constitutional principles instead of state constitutional principles. It means that the federal trial judge who presides over the case must review all of the facts and law from scratch, without deferring to the legal judgments and factual conclusions the Florida courts have reached after many years of litigation-- and 21 separate, written, published rulings in the case. It means that the federal trial judge may order the tube reinserted into Terri Schiavo almost immediately upon getting the case. It means that Congress has interjected itself into a state law dispute, at the end of that dispute, on the side of one litigant over another.
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more...
http://www.cbsnews.com/stories/2005/03/20/opinion/courtwatch/main681785.shtml

[housewolf]

1. Good read - another snippet

Very good discussion of the legal aspects of the bill passed last night


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I'm also saying that there are probably some smart folks on Capitol Hill who are supporting this legislation knowing that ultimately the courts will strike it down. That way, being the politicians that they are, they will be able to blame the heartless judiciary for the result and still will be able to say to their constituents that they tried their best. It is the politics of cynicism at its very best (or very worst).

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QUESTION: You are getting agitated again. Doesn't the legislation specifically say that it does not "constitute a precedent with respect to future legislation, including the provision of private relief bills"?

ANSWER: Yes, it says that. But so what. It said that the last time Congress did this and it didn't stop Congress from doing this now. Look, there is no other way to put it: this is the most blatant and egregious power-grab by one branch over another in my lifetime. Congress is intruding so far into the power of the judiciary, on behalf of a single family, that it is breathtaking. It truly will be fascinating to see how federal court judges react to this-- whether they simply bow down to this end-run or whether they back up their state-court colleagues. And it will be interesting in particular to see what the Supreme Court does with this case. Even the conservatives on the High Court-- and the Chief Justice in particular-- must be concerned about the precedent this sort of legislation would set.

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http://www.cbsnews.com/stories/2005/03/20/opinion/courtwatch/main681785.shtml

[BrklynLiberal]

2. ....