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.
