Schiavo - What Should Congress Have Done?

[wasserma at fiu.edu]

Perhaps Congress could have granted some form of federal protective-party 
jurisdiction over the state law claim that Terri would not have wanted the 
feeding/hydration stopped.  What Congress really wanted, I think, was for a 
federal court to decide de novo whether, under Florida law, the feeding tubes 
should be removed.  And the issue of her intent is close enough, I think, that 
a TRO or P/I would have had to issue (assuming the status quo means 
keeping her alive by re-inserting the tubes) because this could succeed on 
the merits.  And they would require a trial.  I agree with Stephen that there is 
no reason to believe the end result would have been different, so Congress 
still might have had the judiciary to kick around at the end.

But Congress only granted jurisdiction over federal claims, which, 
as people on this list have argued, are pretty weak.

This approach would not have been without some constitutional controversy; 
the Supreme Court never has squarely held that Congress can exercise its § 5 
powers purely through a jurisdictional grant to hear state-law cases involving 
certain parties where federal interests are implicated.  But it is done (see the 
FTCA or federal-officer removal provisions) such that the law might have 
passed muster.


> 
> From: "Stephen M. Griffin" <sgriffin at law.tulane.edu>
> Date: 2005/03/24 Thu PM 12:15:07 EST
> To: <conlawprof at lists.ucla.edu>
> Subject: Schiavo - What Should Congress Have Done?
> 
> I note the statement by Pam Karlan in today's LA Times:
> Part of the parents' legal problem is that "Congress lacked the courage
> of its convictions," said Stanford University law professor Pamela
> Karlan.
> 
> Congress could have passed a law creating new rights for a person in
> Schiavo's position, or could have bypassed the usual judicial procedures
> to move the case more quickly to the Supreme Court, she noted.
> 
> "They did not do the things more likely to get them the result they
> wanted," Karlan said. "Why they thought putting this case into federal
> court would make it more likely that feeding tubes would be reinserted
> is a complete and utter mystery."
> 
> What should Congress have done?  Was there a way to write the statute to
> guarantee a new trial on the merits and not be unconstitutional?
> 
> 
> Stephen M. Griffin
> Rutledge C. Clement, Jr. Professor in Constitutional Law
> Tulane Law School
> 6329 Freret Street
> New Orleans, LA 70118
> (504) 865-5910 (voice)
> (504) 862-8857 (fax)
> sgriffin at law.tulane.edu
> 
> 
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