In the comments to my prior Schiavo-related post a reader asks,
would like your opinion on the standard the judge applied regarding whether to grant the TRO. Clearly this would be the standard applied in any “normal” federal request for a tro. However, I am not so sure that Congress' silence on the standard to apply for such a request should have necessarily been a reason to assume that the normal federal standard should apply. This was not a normal situation, and not a normal statute. I think Congress intended for the parents to get their day in court to fully litigate the due process issues. If you look at the motions and their sparse discussion of these issues, its clear that although the judge was fairly logical, the legal issues have really not gotten “their day in court”. By applying the “likely to prevail” standard, I think the judge stymied what the true (albeit unarticulated) intent of Congress really was. I think Congress intended a much lower standard, probably that the claims are merely non-frivolous. well, silence is golden, and as the judge wrote the constitutionality of the new statute is questionable. but would like your thoughts.
OK. Here are my thoughts:
I think every decent federal district judge in the nation would have done the same thing with this complaint. We can all speculate about what “Congress” — a multi-member body — “thought”, but we can all agree on what the statute says. And it is jurisdictional only. That means the ordinary standards for everything else MUST apply.
To reason otherwise is to open Pandora's Box, minus Hope. (“This anti-terrorism case is so important that Congress would surely want us to lock up the accused without trial.”) Recall Robert Bolt's version of Sir Thomas More in A Man For All Seasons:
MORE. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.
ROPER. Then you set Man's law above God's!
MORE. No far below; but let me draw your attention to a fact—I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. I doubt if there's a man alive who could follow me there, thank God.
ALICE. While you talk, he's gone!
MORE. And go he should if he was the devil himself until he broke the law!
ROPER. So now you'd give the Devil benefit of law!
MORE. Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER. I'd cut down every law in England to do that!
MORE. Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast—Man's laws, not God's—and if you cut them down—and you're just the man to do it—d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
I don't agree, by the way, that the “issues” haven't gotten their “day in court”: The “issues” as (IMHO properly) framed by the court were legal issues and the plaintiffs were unable to make even a proffer of evidence that would have suggested they could meet the relevant standards needed to make out a constitutional violation. Just saying they don't like the outcome won't cut it: The Constitution does not require accurate decisions in all cases; it requires due process and fair procedures. And note that here the facts which are relevant to the complaint are facts about the quality of the state judicial process. The complaint does not (and given the need to find a federal cause of action IMHO could not) state any issues about Ms. Schiavo's actual condition.
There's no doubt that the not-very-hidden agenda behind this bill was to re-litigate the actual issues of Ms. Schiavo's medical condition (and failing that to get a judge to issue a TRO pending whatever happened later). But the bill that actually passed Congress doesn't open the door to reopening the medical testimony, only to constitutional and federal statutory claims. And the complaint — the matter before the court — attacks only the process in counts 1-3. To the extent it attacks the outcome in counts 4-5 it is pretty silly.
Every situation is abnormal in some way. But if the rule of law means anything, then this was the right way to go: apply the usual rules of civil procedure, the usual rules for TROs, the usual rules for everything. You don't get a TRO because you ask for one. The courts have told us time and again you have to meet the regular standards even if an entire species is about to be destroyed forever. So that's what your “day in court” consists of — the same court rules we all get all the time.
Could Congress have lowered the standard for a TRO for this case? Maybe; at some point though this sort of tinkering would degenerate into telling the court how to rule, and that's not allowed. Anyway, would the complaint have met even a perponderance standard? I really doubt it.
Could Congress have directly ordered the tube be put back in pending a full trial on the merits? I honestly don't know, but I suspect that would violate Ms. Schiavo's right to bodily integrity under the Fifth Amendment. (To the extent someone else had to pay for it, it might also be a Taking, but that's minor.) Recall that the current state of play is a state judicial finding that her wish would have been not to linger in this fashion. I can imagine Congress making it an offense to fail to feed the hungry, but I have doubt that Congress could make it an offense to fail to eat. Which is closer to these facts, given the state court's findings that removing the tube is what Ms. Schiavo would have wanted?
Could Congress pass a general rule that X/Y/Z would have to be done before a feeding tube is removed? I think it could. Could it make that law retroactive? I am more dubious, but unsure. But one thing we do know: that's not what Congress did.
It's one thing — and a very proper thing — to interpret language that might be vague so it makes sense given the purpose of a statute. It's another thing — and a much riskier proposition — to read a statute to be the contrary of what it appears to say in order to make it serve its purpose. (I have serious doubts about the wisdom of the approach in Holy Trinity Church.) But making stuff up out of whole cloth? No thanks.