[Mb-civic] Casting Aside the Separation of Powers

[Michael Butler]

Also see below:    
Congress Passes Schiavo Measure    €

    Casting Aside the Separation of Powers
    By John Conyers, Jr.
    t r u t h o u t | Statement

    Sunday 20 March 2005

    By passing this bill, in this form, we will be intruding in the most
sensitive possible family decision at the most ill-opportune time. It will
be hard for this member to envision a case or circumstance that Congress
will not be willing to involve itself in under this precedent.

    By passing legislation which takes sides in an ongoing legal dispute, we
will be casting aside the principle of separation of powers. We will be
abandoning our role as a serious legislative branch, and take on the role
not only of Judge, but of Doctor, Priest, Parent and Spouse.

    By passing legislation which wrests jurisdiction away from a state judge
and sends it to a single preselected federal court, we will abandon any
pretense of federalism. The concept of a Jeffersonian Democracy as
envisioned by the founders, and the states as "laboratories of democracy" as
articulated by Justice Brandeis will lie in tatters.

    By passing this legislation, in the complete absence of hearings or a
committee markup, and with no opportunity for amendments, in complete
violation of what we used to call "regular order," we will send a signal
that the usual rules of conduct and procedure no longer apply when they are
inconvenient to the Majority Party.

    By passing this legislation, and taking this sensitive decision away
from a spouse and giving it to a federal court, we will make it abundantly
clear that all the talk last year about marriage being a "sacred trust
between a man and a woman" was just that - talk.

    My friends on the other side of the aisle will declare that this
legislation is about principle, and morals and values.

    But if this legislation was only about principle, why would the Majority
party be distributing talking points in the other body declaring that "this
is a great political issue" and that by passing this bill, "the pro-life
base will be excited."?

    If the president really cared about the issue of the removal of feeding
tubes, why would he have signed a bill in Texas that allows hospitals to
save money by removing feeding tubes over a family's objection?

    If we really cared about saving lives, why would the Congress sit idly
by while 40 million Americans have no health insurance, or while the
president tries to cut billions of dollars from Medicaid - a virtual
lifeline for millions of our citizens?

    When all is said and done, this bill is about taking sides in a legal
dispute. Last year, the Majority passed two bills stripping the federal
courts of their power to review cases involving the Defense of Marriage Act
and the Pledge of Allegiance because they feared they would read the
Constitution too broadly. Last month, the Majority passed a class action
bill that took jurisdiction away from state courts because they feared they
would treat corporate wrongdoers too harshly. Today we are sending a case
from the state courts to the federal courts even though it is the most
extensively litigated "right to die" case in our nation's history.

    There is only one principle at stake here - manipulating the court
system to achieve pre-determined substantive outcomes. By passing this law,
it should be obvious to all that we are no longer a nation of laws, but have
been reduced to a nation of men. By passing this law, we will be telling our
friends abroad that even though we expect them to live by the rule of law,
Congress can ignore it when it doesn't suit our needs. By passing this law
we diminish our nation as a democracy and ourselves as legislators.

 

    Go to Original

    Congress Passes Schiavo Measure
    Bush Signs Bill Giving U.S. Courts Jurisdiction in Case of Fla. Woman
    By Charles Babington and Mike Allen
    Washington Post

    Monday 21 March 2005

    Congress gave jurisdiction over a brain-damaged Florida woman's case to
federal courts early today, an extraordinary legislative move that could
empower a U.S. judge to order the reinsertion of a feeding tube that a state
court allowed to be removed Friday.

    Voting 203 to 58 at 12:42 a.m., the House joined the Senate in approving
the measure and rushing it to President Bush. He signed the bill into law at
1:11 a.m., saying, "I will continue to stand on the side of those defending
life for all Americans, including those with disabilities."

    With their votes and signature, the Republican-controlled Congress and
Republican president wrote another chapter in an emotionally charged saga
that has divided the patient's family and many other Americans over
right-to-die questions.

    Calling the bill a "Palm Sunday Compromise" that will keep Terri
Schiavo, 41, alive, House Majority Leader Tom DeLay (R-Tex.) said, "It won't
take a miracle to help Terri Schiavo. It will only take the medical care and
therapy that all patients deserve." In a rare gesture, Speaker J. Dennis
Hastert (R-Ill.) presided over the three-hour debate, and he quoted Pope
John Paul II on the subject of life-sustaining treatments.

    The legislation requires a federal judge, upon the family's request, to
launch a new inquiry into the legal and medical questions surrounding
Schiavo, who suffered a severe loss of oxygen to her brain when her heart
temporarily stopped 15 years ago. Doctors appointed by Florida courts to
examine Schiavo say she has since lived in a persistent vegetative state,
although other physicians have questioned that diagnosis.

    David Gibbs II, an attorney for Schiavo's parents, filed that request
overnight, the Associated Press reported from Florida, but there was no
immediate response from the federal judge.

    The Senate, operating under unanimous-consent rules, passed the
legislation yesterday afternoon with no debate and with only three members
present. Senate Majority Leader Bill Frist (R-Tenn.), a renowned heart
surgeon, said Congress cannot force a U.S. judge to order that Schiavo's
feeding tube be reinserted while the new federal case goes forward. However,
he said, "I would expect that a federal judge would grant a stay [of the
state court's order removing the tube] under these circumstances, because
Terri would need to live in order for the court to consider the case."

    Frist called the measure "a unique bill" that "should not serve as a
precedent for future legislation." Some Democrats objected to an earlier,
broader version that might have applied to many cases of incapacitated
patients.

    Schiavo's husband and legal guardian, Michael Schiavo, has said that she
has no hope of recovery and that, based on their conversations before her
heart attack, she would not want to continue living as she is now. Florida
courts have repeatedly sided with him, and the U.S. Supreme Court has
declined to hear appeals of those rulings. He said on CNN this morning that
if the federal courts take up the case, he will continue to press to allow
her to die.

    Terri Schiavo's parents and siblings have fought to keep her alive,
drawing many right-to-life activists and other political groups to their
side. In his Senate speech yesterday, Frist denounced an unsigned memo
circulated to Republican lawmakers over the weekend calling the Schiavo case
"a great political issue."

    Frist said he had not seen the memo, adding: "I condemn the content of
the memo and reaffirm that the interest in this case by myself, and the many
members of the Senate on both sides of the aisle, is to assure that Mrs.
Schiavo has another chance at life."

    GOP lawmakers have said Terri Schiavo's failure to draft a "living will"
makes it impossible to know her wishes, and therefore it is essential that
the government help her stay alive. Frist said the bill will allow Schiavo's
parents to file a federal claim on her behalf "for alleged violations of
constitutional rights or federal laws relating to the withholding of food,
water or medical treatment necessary to sustain life."

    The legislation will put a federal court in direct conflict with Florida
courts, Senate aides acknowledged, a move subject to possible legal
challenges whose duration and outcome is hard to predict. Republicans have
urged the Florida legislature to overcome its impasse on the issue and try
to override the state court's rulings, which could make federal intervention
unneeded.

    Schiavo's feeding tube was temporarily removed twice before under
various legal maneuvers. Doctors say she probably will die from dehydration
in about two weeks if the tube is not reinserted.

    Michael and Terri Schiavo won a $700,000 malpractice lawsuit after her
heart attack 15 years ago, but his lawyers say most of the money has been
spent on health care and legal costs. Medicaid pays for her medication and
Woodside Hospice in Pinellas Park, Fla., provides her care for free, the
lawyers say.

    Congress had largely steered clear of the Schiavo case until last week,
when appeals to Florida courts were exhausted and the state's GOP-controlled
legislature appeared unlikely to step in. Although numerous lawmakers,
especially Democrats, expressed unease over interfering with a state court's
rulings and Michael Schiavo's assertion that he knows his brain-damaged
wife's desires, they generally have been quieter than the conservative
activists and right-to-life groups campaigning vociferously to keep Schiavo
alive.

    A single senator could have postponed yesterday's action but none did
so, even though some criticized Congress's actions. "I think it's unwise for
Congress to intervene in a very deeply personal matter such as this," Sen.
Carl M. Levin (D-Mich.) said on CNN's "Late Edition."

    House Democratic Leader Nancy Pelosi (Calif.), traveling in the Middle
East, said in a statement: "Congressional leaders have no business
substituting their judgment for that of multiple state courts that have
extensively considered the issues in this intensely personal family matter.
The actions of the majority in attempting to pass constitutionally dubious
legislation are highly irregular and an improper use of legislative
authority."

    Congressional GOP leaders were unapologetic for intervening in a way
that is likely to raise constitutional separation-of-powers questions and
that is at odds with traditional Republican calls for honoring marital
privilege and limiting the role of federal courts. "Every hour is terribly
important to Terri Schiavo," DeLay said.

    House GOP leaders had hoped to vote yesterday afternoon. But they were
operating under rules that allowed even one objection to prevent approval of
the bill before today. They spent much of the afternoon and evening
scrambling to summon 218 colleagues -- the minimum for a quorum -- in order
to pass the bill in the earliest moments of today. Congress had begun a
two-week recess, and many lawmakers were traveling overseas or domestically.
A two-thirds majority was required to pass the bill because it was on a
"suspension calendar," usually reserved for non-controversial matters.

    The three-hour House debate, however, was anything but uncontroversial.
Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) accused the
Florida courts of "enforcing a merciless directive." He invoked the civil
rights movement and said it "required federal judicial action" to right the
wrongs of southern courts.

    But Rep. Debbie Wasserman Schultz (D-Fla.) chastised Republicans. "We
are not doctors," she said. "We are not bioethicists."

    Rep. Barney Frank (D-Mass.) said it is foolish to think the bill will
not become a legal precedent. "Every aggrieved party in any similar
litigation now will go to Congress, come to Congress and ask us to make a
series of decisions," he said. "This is a terribly difficult decision which
we are, institutionally, totally incompetent to make."

    When reporters asked DeLay how the bill squares with conservatives'
calls to get the federal government out of state affairs, he flashed a copy
of the Constitution. "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," he said. "It has nothing to do with state's rights. We aren't
overriding state law."

    Schiavo's brother, Bobby Schindler, visited the Capitol yesterday,
accompanied by an official of the National Right to Life Committee. He told
reporters he was there "to help save my sister's life."

    In the House Press Gallery, Schindler encountered Rep. James P. Moran
Jr. (D-Va.), who had said the bill set "a very dangerous precedent that will
come back to haunt us." As Schindler described his sister and produced a
video disk that he said shows she is functional, Moran nodded
sympathetically, accepting the disk, but said he had not changed his mind.

    Moran later cited the encounter in a floor speech. "I don't know who's
right and who's wrong" in the battle over Schiavo, he said. "But that's the
point: Neither do my colleagues." Moran said: "Ten courts, and 19 judges all
have reached the same conclusion," ruling in favor of Michael Schiavo's
request on his wife's behalf.

    Reflecting on the estrangement of the Schiavo and Schindler families,
Schindler told reporters: "It amazes me that Michael Schiavo is trying to
portray himself as a loving, caring husband, when he's abandoned my sister.
She's been warehoused now over 12 years, and he has been cohabitating with
another woman for 10 years and has two children with this woman. That is his
family."

    Michael Schiavo has acknowledged the relationship and children, but he
and his lawyer have sharply rejected other criticism, saying outside groups
and elected officials have seized the issue for political purposes.

    Outside Woodside Hospice, where Terri Schiavo's feeding tube was removed
Friday, dozens of demonstrators -- some singing hymns, others quietly
praying -- maintained the vigil they have kept for days. An attorney for her
parents filed a motion with a federal appellate court to have the feeding
tube reconnected as soon as Bush signed the bill into law.

    House opposition to the Schiavo legislation was led by Rep. Robert
Wexler (D-Fla.), who said the legislation is "totally unconstitutional" and
likely to be struck down by federal courts. "Congress is violating the
separation of powers that have kept a distinct role for the judicial and
legislative branches for over two centuries," Wexler said.

    Maryland Democrats Benjamin L. Cardin, Steny H. Hoyer and Chris Van
Hollen voted against the bill, and Elijah E. Cummings and Albert C. Wynn
joined Republicans Roscoe G. Bartlett and Wayne T. Gilchrest in voting for
it. C.A. Dutch Ruppersberger (D) did not vote.

    Virginia Democrats Moran and Robert C. "Bobby" Scott opposed the
measure; Republicans Eric I. Cantor, Jo Ann S. Davis, Thomas M. Davis III,
Thelma D. Drake, J. Randy Forbes, Virgil H. Goode Jr. and Robert W.
Goodlatte voted for it. Frank W. Wolf (R) and Rick Boucher (D) did not vote.

    House Majority Whip Roy Blunt (R-Mo.) told reporters that he is "going
to look at my living will that I haven't looked at for about 10 years and be
sure it still says exactly what I wanted it to say."

 

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