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Trial By Legislation

Attorney Andrew Cohen analyzes legal issues for CBS News and
After lurking as a local and regional issues for years, the Terri Schiavo case suddenly has mushroomed into a grand constitutional showdown with national implications. Because legal and political developments are occuring at an exceptionally fast rate, and because the dynamics of the current legal dispute are so extraordinary, it's worth a quick look at some of the fundamental questions that are likely to arise over the next few days, as well as my best guesses as to what some answers will be.

QUESTION: First, some context and perspective. How unusual is this scenario, this mix of legal and political agendas, this confrontation between Congress and the courts over the outcome of a single case?

ANSWER: It is so rare that you probably have to go back to the Civil Rights era of the 1950s and 1960s to find a similar situation where there was such a blatant power struggle between the federal government and a state and between politicians and judges. Even the Florida Recount struggle that tainted the presidential election of 2000 did not rise to this level of open combat between the two branches of government. And I say that, and everything else below, acknowledging at the outset that this is a tragic case in which there are, or should be, no winners or losers regardless of the outcome. It is so sad that a private family drama has to play itself out on the most public of stages, with people in critical moments of their lives using and being used by politicians to further one agenda or another.

QUESTION: Step off the soapbox for a minute and give me the facts. So Congress is on the verge of passing legislation about the Schiavo case that President Bush is almost certain to sign into law. First, what does the legislation actually say?

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ANSWER: The draft legislation passed around Saturday evening, the "compromise" that legislators say they will enact and then present to the President, starts off with the words "for the relief of the parents of Theresa Marie Schiavo." The bill would give the U.S. District Court for the Middle District of Florida 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... 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." But it would specifically not "confer additional jurisdiction" on courts to hear disputes about assisted suicide or "create substantive rights not otherwise secured" already in federal or state law.

The proposed law also gives Terri Schiavo's parents procedural help. It gives them standing to start a case on behalf of their daughter in the Middle District of Florida and it requires the federal trial judge to determine "de novo any claim of a violation of any right" Terri Schiavo may have. It also requires the federal courts to push the case to the front of the litigation line and requires the federal courts to issue "such declaratory and injunctive relief as may be necessary to protect the rights of" Schiavo." The law gives Schiavo's parents, or "any other person who was a party to State court proceedings relating" to the case, to file a lawsuit within 30 day.

QUESTION: What does all of that mean? Explain it to me like I'm a fifth-grader.

ANSWER: It means that Congress has literally made a "federal case" out of the Schiavo dispute. It means that Schiavo's parents now have a right to assert essentially the same claims they already have asserted in state court in Florida in a new forum-- federal court-- and applying federal constitutional principles instead of state constitutional principles. It means that the federal trial judge who presides over the case must review all of the facts and law from scratch, without deferring to the legal judgments and factual conclusions the Florida courts have reached after many years of litigation-- and 21 separate, written, published rulings in the case. It means that the federal trial judge may order the tube reinserted into Terri Schiavo almost immediately upon getting the case. It means that Congress has interjected itself into a state law dispute, at the end of that dispute, on the side of one litigant over another.

QUESTION: Got it. Let's assume the President signs the legislation on Sunday night. What happens next?

ANSWER: Next there would be a race to the federal courthouse. Terri Schiavo's parents would file a lawsuit seeking to exercise the rights that Congress just gave them. And Michael Schiavo, Terri's husband, would go into federal court and ask for a ruling that declares the Congressional effort unconstitutional. It doesn't really matter which side gets to court first, though. The cases, the claims, almost certainly would be consolidated anyway before the same federal judge. And then the judge would hold an initial hearing before determining what to do next.

QUESTION: What's the time frame for all of this? How soon will everyone be in court?

ANSWER: It will happen quick-- recount-like, quick. If the President signs the bill on Sunday, I suspect we will see some sort of court hearing by Monday afternoon at the latest. Somewhere, in the Middle District of Florida, there is a federal judge whose name in the next few days is going to be well-known to everyone following the case.

QUESTION: So what happens at the hearing?

ANSWER: Plenty. Terri Schiavo's parents presumably will immediately ask the judge to reinsert their daughter's feeding tube until the federal case is resolved. Michael Schiavo presumably will ask the judge to immediately declare the law void. If Michael Schiavo prevails, the case would immediately be appealed to the 11th Circuit U.S. Court of Appeals and then to the United States Supreme Court which, for the first time in this case, would be looking at the issues involved with some Congressional guidance on the matter. But even if Terri Schiavo's parents were to prevail and get the feeding tube initially reinserted-- a decent bet-- the case would move very quickly. First, the federal judge would have to decide the merits of Michael Schiavo's arguments. If those arguments don't prompt the judge to reject the law, then the case would move to the underlying issue of whether Terri Schiavo's constitutional rights are being deprived.

QUESTION: Let's start first then with Michael Schiavo's expected arguments. Does he stand a chance of getting this law declared unconstitutional?

ANSWER: Absolutely he has a chance. There are plenty of serious constitutional issues raised by this law. First, it applies only to one family and thus may create equal protection problems-- after all, why shouldn't other people who want to keep their loved ones on life support over the objections of others not also received tailor-made legislation? Second, as Harvard Law School Professor Laurence Tribe points out, it arguably deprives Terri Schiavo herself of the constitutional right to "halt the unwanted bodily invasion by a tube" and does so without any due process to her (and her husband and guardian). Third, it raises big separation of powers problems and also federalism concerns-- the Supreme Court in particular hasn't been receptive to federal intrusion into matters normally resolved by the states-- matters like guardianship laws.

QUESTION: So you are saying that it is not a slam dunk that this effort by Congress ultimately will succeed even in getting another round of substantive hearings on the merits of Terri Schiavo's rights?

ANSWER: That is exactly what I am saying. And I will go a little further. I'm also saying that there are probably some smart folks on Capitol Hill who are supporting this legislation knowing that ultimately the courts will strike it down. That way, being the politicians that they are, they will be able to blame the heartless judiciary for the result and still will be able to say to their constituents that they tried their best. It is the politics of cynicism at its very best (or very worst).

QUESTION: Okay, settle down. Now take me through the scenario if the law initially is declared constitutional.

ANSWER: Assuming the law is declared constitutional, and Terri Schiavo's lifeline is returned to her, there likely would be a series of quick hearings on the merits of her claims. It's likely that any federal judge willing to declare the law constitutional and return Schiavo to the status quo ante (the tube is back in) also would be willing to hold an evidentiary hearing on her parents' claims that depriving her of her feeding tube violates her constitutional rights. Such a hearing would likely be rather complicated, with testimony from doctors and others about Schiavo's condition. In essence, the hearing would be a lot like what Michael Schiavo and Terri Schiavo's parents already have gone through in state court in Florida. And, remember, those state-court hearings ultimatley resulted in a finding-- supported by two, neutral, court-appointed physicians, that Terri Schiavo is in a "persistent vegitative state" with no hope of recovery and that she had expressed a wish to have medical treatment withheld in these circumstances.

QUESTION: So the years of state-court litigation would be wiped off the map, as if it never took place?

ANSWER: If Congress gets its way, yes. That's why the legislators in Washington put the words "de novo" into the legislation, so that the federal courts would not be bound by anything the state courts in Florida had done. Terri Schiavo's parents still would have to convince the federal judge that her rights are being violated, and they would have to have the medical evidence to back that up (which they did not have in the state case), but the state case would not act as a mandated precedent in federal court.

QUESTION: What does that concept do the regular give and take between the court systems, the idea of comity and cooperation between judges?

ANSWER: It destroys it. But that's the whole point of this Congressional action. Not liking a particular result in a case that has been litigated fully and completely by a court with competent jurisdiction, Congress now has said that the game must be re-done with new rules that heavily favor one side over the other. The implications of this move are astonishing. Just think about it. Anytime Congress doesn't like the result in a particular case, it could swoop in and call a "do-over," which is essentially what this legislation represents. And this from a Congress that has for a decade or so tried to keep all sorts of citizens-- including disabled employees-- out of federal court. If this law is declared valid, no decision in any state court in the country will be immune from Congressional second-guessing. It would throw out of whack the entire concept of separation of powers. The constitutional law expert Tribe calls it "trial by legislation" and he is right.

QUESTION: You are getting agitated again. Doesn't the legislation specifically say that it does not "constitute a precedent with respect to future legislation, including the provision of private relief bills"?

ANSWER: Yes, it says that. But so what. It said that the last time Congress did this and it didn't stop Congress from doing this now. Look, there is no other way to put it: this is the most blatant and egregious power-grab by one branch over another in my lifetime. Congress is intruding so far into the power of the judiciary, on behalf of a single family, that it is breathtaking. It truly will be fascinating to see how federal court judges react to this-- whether they simply bow down to this end-run or whether they back up their state-court colleagues. And it will be interesting in particular to see what the Supreme Court does with this case. Even the conservatives on the High Court-- and the Chief Justice in particular-- must be concerned about the precedent this sort of legislation would set.

QUESTION: Has the Supreme Court looked at this issue before?

ANSWER: Yes and no. For example, in 1989, the Justices decided the Nancy Cruzan case out of Missouri. There was no intra-family fight in that case. Like Terri Schiavo, Cruzan was in a persistent vegitative state. Cruzan's parents wanted to take her off life-support but the Missouri courts said that they could not-- that there was no "clear and convincing evidence" that Cruzan would have wanted her feeding tube removed. In the Schiavo case, the Florida courts have found that Terri Schiavo indeed declared her wishes to her husband and that he is entitled to see them carried out. So the Cruzan case would be a guiding precedent but it would not automatically resolve the matter in favor of Terri Schiavo's parents. One question certainly for the Justices-- and the federal trial judge who first would look at the case-- would be how strong the proof is that Terri Schiavo would have wanted to be taken off life-support. It's possible, I suppose, that this proof was good enough for legions of Florida judges but not good enough for the federal judiciary.

QUESTION: What do you think is going to happen? Best guess.

ANSWER: I honestly don't know. I think the law, once passed, probably will result in the re-insertion of Terri Schiavo's feeding tube. The question is for how long. If Michael Schiavo prevails, it could be a matter of days. If not, it could be a longer. In the end, however-- and here I truly am speculating-- I don't see even the federal courts stripping Michael Schiavio of his power to make the tough call he has made. Terri Schiavo's parents and their supporters say that she has been deprived of her due process rights. But I think it is slightly more likely than not that the federal courts will declare that the Florida courts gave all the parties in this sad case extensive rights and opportunities to fairly litigate their dispute.

QUESTION: Any final thoughts.

ANSWER: Yes. If there is a lesson in all of this ugliness, in all of this unseemliness, it is that everyone who can should have a "living will," a clear, unambiguous, direct declaration of what you want done (or not done) in case you reach the point that Terri Schiavo sadly has reached. Living wills are not expensive, they don't take a long time to complete, and they can help guide families during the worst moments of their lives. It's funny, if Congress in the name of Terri Schiavo had passed legislation aiding in the effort to get people to make living wills it would have earned my praise today instead of my scorn.

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