I am not a federal courts scholar, although I'm interested enough in related issues to at least keep an eye on the subject. Ditto for federalism. And I've had the advantage of following some pretty high-powered exchanges on various email lists devoted to constitutional law. So here are some partly-informed thoughts, first on the constitutionality of the Schiavo bill, Public Law No: 109-3 (full text below), and second on what the federal court is likely to do with the case. If you are a regular reader of this blog, you may find some of my views surprising. (Note: Before reading further, you might wish to go visit the comprehensive factual account of the progress of the Schiavo case at Abstract Appeal.)
As I blogged on Sunday, my first somewhat knee-jerk reaction was that the Schiavo bill was incompatible with the Republican vision of strong federalism, a view that generally argues in principle (if so rarely in practice) for limited Congressional power over traditionally state domains of regulation, and which has enthusiastically greeted a set of Supreme Court decisions that restrict Congress's commerce clause power. I still think that's true. And it's a deserved shot, not a cheap one.
But so it's easy to point at others' hypocrisy, and only a little helpful at best. What about if the Schiavo Bill is held up to the view of federalism I hold? Does it pass muster? I think, at the end of the day, it does – although as I'll explain below I think, amazingly, the court will not actually need to address this question.
The first thing to understand is what the Schiavo Bill does and doesn't do. The bill as passed does not actually set rules of decision; it's purely jurisdictional: it creates a federal forum to hear claims of “the alleged violation of any right of Theresa Marie Schiavo 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.” The statute does not create any new rights at all other than access to federal court. (“Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.”) And most importantly, the bill does not direct the court to reach any particular verdict.
The bill can be criticized for being overly particular, but in fact that's not a terribly powerful legal as opposed to political critique. As they told me in law school, “the Constitution doesn't have a 'Givings Clause'”; if the Congress wants to award me a private pension, it can do that, even if you deserve it more. (And it's not a bill of attainder because it doesn't on its face create a legal disability, although it does of course work some hardship on Mr. Michael Schiavo.)
The bill can be criticized for in effect reopening a concluded proceeding, and thus inviting the federal court to overturn a settled court judgment. I think this is the strongest claim against it doctrinally. But again, I'm not at all sure this works. In our dual court system we're accustomed to parallel and potentially contradictory outcomes. Indeed 18 USC § 1983, which makes it a federal issue to deny someone their constitutional rights 'under color of state law', positively invites them.
One might ask, and at first I surely did, where Congress gets the authority to create this jurisdiction, or where the federal courts get the authority to hear this case. But on reflection for someone like me who takes a relatively expansive view of the power of both Congress and the courts to enforce the Constitution, this doesn't actually seem so hard after all – the authority comes for the Constitution (and the 14th Amendment). And why shouldn't Congress act to empower federal courts to protect individual constitutional rights?
Interesting as all this is, I think at the end of the day very little of it matters. I say this, because I've had a look at the Schiavo complaint and it looks fairly lame. I think any judge faced with this case will take the obvious way out: assume the constitutionality of the Schiavo bill, and rule against the plaintiffs on the (de)merits of their complaint.
The complaint has five counts. Count one alleges a violation of a 14th amendment due process right to a fair trial on the grounds that the state court judge failed to appoint a guardian ad litem to represent Ms. Schiavo's interests, and instead judged the matter himself. Plus he denied her right to access to court by failing to order her to appear for his inspection. The Second DCA, the Florida appeals court, affirmed Judge Greer on this exact issue, however:
Under these circumstances, the two parties, as adversaries, present their evidence to the trial court. The trial court determines whether the evidence is sufficient to allow it to make the decision for the ward to discontinue life support. In this context, the trial court essentially serves as the ward's guardian. Although we do not rule out the occasional need for a guardian in this type of proceeding, a guardian ad litem would tend to duplicate the function of the judge, would add little of value to this process, and might cause the process to be influenced by hearsay or matters outside the record. Accordingly, we affirm the trial court's discretionary decision in this case to proceed without a guardian ad litem.
The federal court is not bound by this state court decision, but I think it will find it persuasive.
Count two is the same claim, but couched as a deprivation of a procedural due process right to life, liberty or property.
Count three claims a violation of a right to equal protection on the grounds that Florida's substituted judgment rules are unconstitutional.
Count four argues that since Ms. Schiavo is Catholic, removing her feeding tube “in a manner disapproved of by the highest ecclesiastical authority of her Catholic church imposes a substantial burden on Terri's free exercise of religion” in violation of the federal religious land use and institutionalized persons act. Yes, that's really what it says. Read paragraph 67 for yourself. Incidentally, RLUIPA is a statute primarily about “zoning and landmarking laws that substantially burden the religious exercise of churches or other religious assemblies or institutions absent the least restrictive means of furthering a compelling governmental interest.”
Count five is like count four, except it alleges that “defendants” (none of whom are state actors other than the Florida judge) “have a constitutional duty” to “accommodate” Ms. Schiavo's religious beliefs. And the order to remove the feeding tube “on its face” is “specifically targeting religion for special disabilities without a compelling state interest”. As the “special disabilities” here appears to be not treating what the Catholic church says Ms. Schiavo's caregivers should do as dispositive, I have to say that this count appears as unlikely as the fourth.
Of these counts, four and five seem at first glance to be quite lame. I'm not competent to say with any certainty, but I strongly suspect that count three is also a dead loser if only because if it were not the issue would have arisen by now. That leaves the fundamental argument in counts one and two – a claim of a giant defect in the state procedure.
Undoubtedly, the First/GOP strategy was to go to the feds, throw up a lot of dust, and hope that the district court would issue a stay, buying time for a year or three of federal appeals. After all, the easy way out for the federal district court would have seemed to be to keep everything in place for the pendency of the litigation.
But I don't think this complaint has what it takes to get the average district judge with an ordinary backbone to do that. The Schiavo case was heard in state court by Judge Greer, and I think the judges fraternity thinks he's handled a real hard case very well. I know from my clerkship with a federal district court judge that federal trial judges, who after all live in the same legal community as the state court judges, are often quite concerned to be and to seem respectful of their state court colleagues. Slapping on a stay without something that looks like a good argument on the merits would be slapping Judge Greer in the face for no reason. And I don't think most federal judges would be at all keen to do that. And in any attempt to sort out who gets to decide what – who has legal right to speak for Ms. Schiavo – the federal court will be bound by state law; indeed, given that this complaint argues only that the state court erred in (1) not having a guardian ad litem and (2) the ultimate merits, I'd think a federal court might find itself bound by state court decisions as to status
One final point: All bets are off in the Court of Appeal, though. They might well issue an emergency stay when the case reaches them. Even if my guess above about where this is going is correct, I couldn't hazard a guess without reading the trial court's opinion, and maybe not even then.
Text of the Schiavo Bill
For the relief of the parents of Theresa Marie Schiavo.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.
The United States District Court for the Middle District of Florida shall have 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 of Theresa Marie Schiavo 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.
SEC. 2. PROCEDURE.
Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall 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.
SEC. 3. RELIEF.
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.
SEC. 4. TIME FOR FILING.
Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.
SEC. 5. NO CHANGE OF SUBSTANTIVE RIGHTS.
Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.
SEC. 6. NO EFFECT ON ASSISTING SUICIDE.
Nothing in this Act shall be construed to confer additional jurisdiction on any court to consider any claim related—
(1) to assisting suicide, or
(2) a State law regarding assisting suicide.
SEC. 7. NO PRECEDENT FOR FUTURE LEGISLATION.
Nothing in this Act shall constitute a precedent with respect to future legislation, including the provision of private relief bills.
SEC. 8. NO AFFECT ON THE PATIENT SELF-DETERMINATION ACT OF 1990.
Nothing in this Act shall affect the rights of any person under the Patient Self-Determination Act of 1990.
SEC. 9. SENSE OF THE CONGRESS.
It is the Sense of Congress that the 109th Congress should consider policies regarding the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid, or medical care.