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Activist LegislatorsThe boundless overreaching behind Congress' new Schiavo bill.

By Dahlia Lithwick
Posted Monday, March 21, 2005, at 3:20 PM ET

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Whether Terri Schiavo will live or die in the coming days has come down to this: Can federal district judge James Whittemore set aside virtually every bedrock constitutional principle on which this nation was founded, just so members of the United States Congress may constitutionalize the nowhere-to-be-found legal principle that a "culture of life" is a good thing?

This morning's decision by Congress and President Bush—to authorize new federal legislation that will obliterate years of state court litigation, and justify re-inserting a feeding tube into Terri Schiavo, based on new and illusory federal constitutional claims—is not about law. It is congressional activism, plain and simple; legislative overreaching and hubris taken to absurd extremes.

Let's be clear: The piece of legislation passed late last night, the so-called "Palm Sunday Compromise," has nothing whatever to do with the rule of law. The rule of law in this country holds that this is a federalist system—in which private domestic matters are litigated in state, not federal courts. The rule of law has long provided that such domestic decisions are generally made by competent spouses, as opposed to parents, elected officials, popular referendum, or the demands of Randall Terry. The rule of law also requires a fundamental separation of powers—in which legislatures do not override final, binding court decisions solely because the outcome is not the one they like. The rule of law requires comity between state and federal courts—wherein each respects and upholds the jurisdiction and authority of the other. The rule of law requires that we look skeptically at legislation aimed at mucking around with just one life to the exclusion of any and all similarly situated individuals.

And what is the overwhelming constitutional value that supersedes each of these centuries-old legal notions? Evidently, Congress has a secret, super-textual constitutional role as the nation's caped crusaders—its members authorized to leap into phone booths around the world and fly back to Washington in a single bound whenever the "culture of life" is in peril. Republicans acknowledged this weekend that their views on "the sanctity of life" trump even their convictions about federalism. Or, as Tom DeLay put it, when asked how he reconciles this bill with conservative calls to keep the federal government out of state matters, "We, as Congress, have every right to make sure that the constitutional rights of Terri Schiavo are protected, and that's what we're doing."

This congressional authority to simply override years of state court fact-finding brings with it other superpowers, including the power of gratuitous name-calling: Members of Congress unable to pronounce Schiavo's name just last week are denouncing her husband as an adulterer and common law bigamist who withheld proper medical care from her. I wonder what they'd say about my parenting—or yours—if they decided to make a federal case out of every domestic-custody dispute currently resolved in state court proceedings.

Members of Congress have apparently also had super-analytical powers conferred upon them, as well. Senate Majority Leader, and heart surgeon, Bill Frist felt confident last week—after reviewing an hour of videotape—in offering a medical diagnosis of Schiavo's condition, blithely second-guessing the court-appointed neurologists who evaluated her for days and weeks. His colleagues are similarly self-appointed neurological experts. Years of painstaking litigation, assessment, and evaluation by state courts are dismissed by Tom DeLay as the activist doings of a "little judge sitting in a state district court in Florida." Only the most extraordinary levels of congressional hubris could allow a group of elected citizens to substitute their personal medical, legal, and ethical judgments for those of the doctors, judges, and guardians who have been intimately involved with this heartbreakingly sad case for years.

And shouldn't we worry—just a bit—when in the name of a "culture of life" Congress enacts legislation that singles out just one Florida family for special legal standing? Frist calls this "a unique bill" that "should not serve as a precedent for future legislation." Yet Schiavo is just one of up to 35,000 people in this country in a persistent vegetative state as the result of trauma, drug overdose, or other medical complications. Remember what happened to Élián Gonzáles when the federal government decided to embroil itself—just this once—in a custody dispute? Why does Terri Schiavo alone warrant the legislative intercession of these self-appointed crusaders? (Not because this is a "great political issue" that would appeal to the base and defeat a Florida Democrat, according to a one-page memo distributed to Republican senators last week.) The last time Florida had to contend with a good-for-one-ride-only legal intervention of this sort was in Bush v. Gore.

Take a peek into any chat room (or this Fray in 15 minutes) and you will find hundreds of individuals who personally know that Terri Schiavo is—despite voluminous testimony by her doctors and her guardians ad litem and the findings of multiple judges—capable of laughter and responsiveness and a full recovery. How do they know these things? The same way their elected representatives do: They watched a video clip. And because anyone who disagrees with the video is a murderer and torturer, the state court judge in this case requires constant police protection: The standard-bearers of the "culture of life" keep threatening to kill him.

The reason we have courts, the reason we traditionally assign these brutal fact-finding responsibilities to those courts, is that intimate legal custody and life-or-death decisions should not be determined based on popular referenda. They need to be rooted, as much as possible, in rock-solid legal rules.

This is not a slippery-slope case, where it's a short hop from "executing" those in persistent vegetative conditions to killing anyone with a disability. This is a case in which an established right-to-refuse-treatment claim, litigated for years up and down through the appeals courts, is being thwarted by parents with no custodial claim to their child. By stepping in merely to sow doubt as to whom Terri Schiavo's proper custodian might be, rather than creating some new constitutional right to a "culture of life," Congress has simply called the existing legal regime into doubt without establishing a new one. This new law offers no clarity about what the new federal claims might be. It just forum-shops for a more tractable judge.

You can put aside the doctrine of federalism for Terri Schiavo, and the principles of separation of powers, and comity, and of deference to finality and the rule of law. But you'd want to be certain, on the day you do so, that you're sacrificing them for some concrete legal value that matters a whole lot more. Subordinating a centuries-old culture of law to an amorphous, legally meaningless "culture of life" is not a decision to be taken over a weekend.

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Dahlia Lithwick is a Slate senior editor.
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Remarks from the Fray:

I happen to agree with Dahlia that Congress has overreached here. But I'm a little skeptical of her overwrought hand-wringing at the violation of states' rights, federalism principles, and separation of powers. Simply put, I don't believe her indignation goes both ways. Was she equally outraged when the Supreme Court reached out to strike down a state constitutional amendment -- not just a state law -- without even the justification of a "protected class" behind its action? (see Romer v. Evans) Somehow I doubt that Dahlia really cares much about federalism and separation of powers as such. I suspect it is more likely she is unhappy to see the legislative sphere enlarging itself at the expense of the judicial sphere, because the current judiciary conforms more closely to her own ideology than does Congress, and that she cares about federalism protections against interference with state laws exactly as far as state laws and decisions conform to her views. It's very easy to notice when your ideological opponents have hypocritically switched sides (as conservative Congressmen indeed have over this issue). It's harder to notice that, in opposing them, you have done the same.

--HLS2003

(To reply, click here)


Let's go down the road with the federal court, shall we? Let's say the federal court decides either a) the statute was unconstitutional or b) there is no case to be made for an temporary injunction ordering that the feeding tube be put in, or c) both. Then let's say that the Court of Appeals agrees, and the Supreme Court (as it has already done) refuses to take this case. What will Congress do next? Take the Andrew Jackson stance of "they have rendered their ruling, now let them enforce it?"

I really hope it doesn't, but this situation could morph into a full fledged constitutional crisis. Congress has taken an action virtually unprecedented in our history, in inserting itself into a private civil action and granting a federal court jurisdiction that it did not previously have to hear one case and one case only. How do you then say no to the next request? How about the next request? The one after that?

This action is far beyond the power that Congress ever thought it had for the last 200 years. Let's hope that this power is quickly and definitively stamped out.

--JohnLex7

(To reply, click here)


I agree that Ms. Lithwick's heated rhetoric and self-righteous indignation don't help the debate on either side. They don't persuade, and they certainly inflame the disagreements from Schiavo's defenders. It's not what I expected from a legal journalist. And to speak of the rule of law, as Lithwick does, is not that honest. Liberals, including myself, understand that it's incredibly diffiuclt to have a principled position on federalism. The boundaries separating the states and the federal government are fuzzy. In the end, although Ms. Lithwick is probably right, she's right for the wrong reasons, or at least she's not as forthcoming as I'd expect.

I recently read a piece in the National Review equating the revomal of Schiavo's feeding tube with torture. The author, I suspect, was hoping to score some cheap points against anti-torture liberals. It symbolized what's wrong with debate in this country. Ms. Lithwick didn't go that far, but she didn't further understanding either.

--AustinCityLights

(To reply, click here)


…Congress is not only cowardly but downright damaging when it passes this "special" legislation for her only. Whatever my personal opinions, I don't believe that congress should cherry-pick cases it doesn't like and forum shop them. If congress had the guts/brains to pass a law that actually set a *policy* (even one I didn't like) I could have more respect for them. But by making this bill about one person and specifically including language that it can't be applied in other cases -- congress is both evading its duty and meddling…

--fozzy

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(3/21)

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