What It Means to Be A Government of Laws

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.

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5 Responses to What It Means to Be A Government of Laws

  1. JO'N says:

    Although I’m not a lawyer, I wonder if this comes down to what the Congress meant by “de novo”. I do know Latin, and in Latin it would seem to indicate that Congress wanted a complete do-over in federal court. Certainly, that’s what the Senator from Man-on-Dog seems to think:

    > “You have judicial tyranny here,” Santorum told WABC Radio in New York.
    > “Congress passed a law that said that you had to look at this case. He simply
    > thumbed his nose at Congress.”
    > “What the statute that [Whittemore] was dealing with said was that he shall
    > hold a trial de novo,” the Pennsylvania Republican explained. “That means he
    > has to hold a new trial. That’s what the statute said.”
    > “What he’s saying is, ‘I don’t have to hold a new trial because I’ve already
    > determined that her rights have been protected,'” Santorum said.
    > “That’s nice for him to say that But that’s not what Congress told him to do,”
    > he added. “Judges should obey the law. And this judge – in my mind – simply
    > ignored the law.”

    On the other hand, not only might the phrase “de novo” have a meaning peculiar to the law with which I’m unfamiliar, it’s also possible that actually doing it all over again is so blatantly unconstitutional (as well as being an huge waste of time and money for everyone) that the federal judges will simply do their jobs, not what Congress might have told them to do.

  2. thomas says:

    I suppose I take the larger view of the entire mess…and I find the Congressional action extremely offensive. True, the bill that Congress passed is purely jurisdictional, and Congress can extend jurisdiction to any district court it likes, but…there just AREN’T Federal issues here upon which to base their authority. That’s partly what I find troubling…
    The parents of Terri have any sort of due process claim? Or 1st Amendment claim? Are there any Federal issues here to argue? Maybe if the state courts had refused to consider certain Constitutional claims or something…but this has been hashed out over and over. There is no argument that the parents can make that is even remotely plausable. Judge Whittemore heard apparantly about 2 hours of oral argument before deciding…there is just not a claim to be found here.
    But aside from that…there is the whole atmosphere…like the legislature sets ’em up, the judiciary knocks ’em down. Let’s all play ball here.
    President Bush has called the district court ruling “disappointing.” And now I read:

    House Majority Leader Tom DeLay, a Texas Republican who pushed the law, said the judge’s decision was “at odds with both the clear intent of Congress and the constitutional rights of a helpless young woman.”

    “The clear intent of Congress?” I’m sorry…did they pass a statute that must be obeyed? This isn’t offensive to anyone else? The House Majority Leader commenting on an “independant’ judicial decision, and criticising it for not being on board the Congressional…umm…steamer? (lol)

    It’s a pretty amazing debate to see as far as Federalism issues go. But let’s not pretend that it’s totally kosher. The legislature is stamping up and down on the feet of the judiciary, in my view. Yes, the Federal judiciary can and should be ignoring all the sideshow comments and stick purely to the issues.
    After all, judges aren’t political. Right?…Right?

  3. michael says:

    Regarding the first comment above, “de novo” is indeed a term of art, it means starting from scratch rather than acting as a form of review in which prior decisions are either preclusive or entitled to some form of deference (as is the case in, say, most but not all review of administrative agencies).

    The point I was making is that this hearing was starting from scratch — but the claims asserted were not anything serious about the actual merits, and as the bill constrains them could not be. Discounting the risible last two counts, neither Ms. Schiavo’s actual wishes nor her actual condition were issues before the court. And what you get when we start from scratch is a right to a trial on your claims. A TRO is exceptional relief; you get that if you meet the conditions — this didin’t come close.

  4. Jonathan says:

    Prof. Froomkin,
    I realize it must take time to compose works of art, but your posts are gold, and I certainly wouldn’t be upset if you produced more of them on this topic and others!

    Thanks for discussing this topic in the detail you have. It’s very informative.

  5. Bricklayer says:

    michael- as you can see, atleast one 11th cir. judge, Wilson, agrees with me. I also share his view that the 1th majority opinion does not properly understand the snippet of the hearings that they include in their opinion. Congress did not intend to mandate a stay, but that does not also mean that congress intended plaintiffs to face such a heavy burden as would normally be the case for a tro. I think sometimes the community of lawyers becomes obsessed with the notion of stare decisis, and forgets the fact that legislation need not follow that doctrine. Ultimately we are of, for, and by the people and thus courts should strain to follow congressional intent, not stymie it. To read the congressional hearings the way the majority did was to view the passage of the statute as something congress did reluctantly, cautiously, as if a mere political gesture. I think that quite the contrary, it was something done with the intent to give the schiavo parents the widest possible berth to get their claims into federal court.

    I have also had some time to reflect on one of the due process claims, the right of a person to be present/examined by the judge, i.e. be present in the forum. At first I had trouble viewing this as a true due process claim, and understood it to be more of an evidentiary claim. As I understood it, the parents just wanted to point out that the judge relied on “expert” doctors (in some circles aka quacks) without the benefit of his own, personal inspection. Were their claim along the lines of having been denied the right to introduce her “presense” into evidence, I’d say there is a strong case to be made to allow such an admission, but not necessarily rising to the level that a denial would be a due process claim.

    But then I return to basic principles of due process, such as the right to be present in court and confront one’s accuser in criminal contexts. Why do have such principles? Although there is the minor point that we will hopefully get higher quality testimony by forcing witnesses to be in the room with the accused, I don’t think that is the real reason. The real reason is to give the entire process transparency and legitimacy, and to protect the “system” even when the actors/witnesses make mistakes. Assume we have a criminal defendant who is completely innocent, but witnesses claim to have seen him commit the crime and he is ultimately convicted. By allowing him in the courtroom, allowing him to see for himself on what basis the trier of fact concluded his guilt, he and his supporters will be less likely to blame the system and instead will understand it was the witnesses, not the system that is mostly to blame.

    Turning to a case like this, suppose we have a situation where the believed-to-be-brain-dead coma victim is actually conscious and aware, can hear and see but not move. Its happened, although granted it seems unlikely in this case. If a judge never sees her, if she is not “kept informed” and isn’t present in the process, she’ll have no idea why and on what basis her life support is being cut off. Who will she blame? The system. But if she were included in the process, seen by the judge personally, and atleast present for the process, she would go to her grave knowning it was not the fault of the system, but instead bad luck of the draw, or just a deficiency in the present state of medical science.

    In addition, we demand criminal defendants be allowed access because in the trial things may happen and information may come out that means nothing to the lawyer but has great importance to the case and only the defendant himself may realize this. Most of what defandant’s whisper into their lawyers ear during a trial is blather, but every now and again the defendant will take note of something a witness said that becomes a vital issue in the case that he must bring to his lawyers attention. Merely keeping a defendant informed from the jailhouse of how his trial is proceeding would never accomplish this goal. In a case like this, there is the same notion that the solemnity and gravity of an actual hearing and having the person present before a judge might cause something in her to realize the life and death gravity of the situation and “snap out of it”. Again, that may be an impossibility here, but could happen in another case. In otherwords, the do-or-die tension of a hearing and the notion to “speak now or forever hold your peace” is something that we give to weddings and wills, so why not a competency hearing like this.

    Again, the purpose of due process is atleast in part to grant every human being understanding as to why the state is acting the way it is towards that person. If Terri is at all aware, she is passing without knowledge of why its all happening and why the state has allowed her abondonment. Were she, or the next case where someone with greater awareness is involved, present during all stages, the right to be informed will have been satisfied.

    I understand that in most cases it would be an empty gesture. But the same is true for most criminal proceedings, the outcome wouldn’t be changed much by the defendant’s presense. The question is a matter of right.

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