FW from Chip Lupu: Schaivo

[Bob Sheridan]

On the question whether this proposed Act, affecting a class of one, by 
name, no less, meets the congruence and proportionality test of Boerne, 
I'm puzzled.  Isn't everything proportional to one?  Isn't everything 
congruent to one?  Where would the limit be on singularities?  The 
Boerne test is defeated, or at least obviated, by a singularity if this 
Act meets it.

OK, so Congress says, as  has been pointed out, that we're not 
regulating substance, we're regulating procedure by creating a new one, 
for one person.

But substantively, as has been pointed out, Michael S., as husband of 
Schiavo, and, apparently, the designated (by the Florida courts) 
authority to make the decision whether to remove the tube, has succeeded 
in establishing his point, and his authority, in the Florida court, and 
has exercised it.

As has also been pointed out, he is now being deprived of the fruit of 
his litigation efforts, burdening him further, increasing his expense 
and the difficulties attendant upon litigation on behalf of Terri, 
presumably according to her wishes.  This Act seems to be an undue 
process to me, like the referee deciding to extend the length of the 
game after the winning shot goes in at the buzzer by the disfavored 
team.  Talk about changing the rules of the election (process) after the 
voting (process) starts!  That, if I understand correctly, was the 
winning EP violation complained of so fervently by the same 
conservatives, in Bush v. Gore, also in Florida.  I'd add Bush v. Gore 
to the mix on that ground, in favor of unconstitutionality.

Which brings me back to Romer, which exists to deal with such 
legislative flyers, as I read it.

How much harder Con-Law is to do looking forward than looking back!

This string looks a bit confused, perhaps even "confounded," at a higher 
level, of course.

bob s.
sfls


Mark Tushnet wrote:

>And I think that Chip has put *his* finger on the problem, 
>which turns out to be one of circularity:  The rational basis 
>for singling out this case is that there is (some) reason to 
>believe that the Florida courts erroneously determined 
>what her wishes were (and less reason -- so far -- to 
>believe that other courts have made similar mistakes); and 
>(therefore) it's really hard to invoke her right to terminate 
>treatment if she chooses when there's a rational basis for 
>questioning the Florida courts' determination of her 
>preferences.
>
>I'll have to think some more about Lynne Henderson's 
>questions about Cruzan, but my first reaction is that 
>there's no Boerne problem if all that Congress is diong is 
>providing a federal trial level forum for determining whether 
>the Florida procedures were constitutionally permissible 
>under Cruzan (and -- here's where I have to think some 
>more -- it may be that a de novo determination of her 
>preferences will shed some light on the question of the 
>permissibility of the procedures chosen from within the 
>range of constitutionally permissible ones).
>
>  
>
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