Tuesday, March 22, 2005

Brain-Dead Legislators

Question: Should a person in a perpetual vegetative state finally be allowed to die after 15 years? That's a no-brainer — sadly, one that the no-brains in Congress just failed. If you’re looking for a truly interesting question, consider this one: Is it more humane to allow a person to die slowly by starvation and dehydration, or to hasten their death with painless medications?

As a policy matter, we might reasonably opt for the former. But that’s not what I’d choose for myself.

Bonus question: Can anyone tell me what passage in the U.S. Constitution justifies the federal government getting involved in the Schiavo case at all?


Gary said...

The same "authority" that lets them regulate food, what you can grow on your own farm, how many MPG your car can get, whether states can limit abortion, what penality states can assign for murder, break into your home to search for guns or drugs, and what kind of toilet you have.

That is, they can do anything they want if they can get 5 judges to agree.

MLS said...

Or, to be more technical:

Art. III, section 1 of the Constitution provides that "[t]he judicial Power of the United States, shall be vested in one supreme court, and in such inferior Courts as the Congress may from time to time ordain and establish." The implication of that statement is that "[o]nly the jurisdiction of the Supreme Court is derived directly from the Constitution. Every other [federal] court . . . derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution." Kline v. Burke Constr. Co., 260 U.S. 226, 234 (1922). Congress therefore has authority to pass laws governing the jurisdiction of federal court. So, as to Congress, the correct answer to your bonus question is Article III, section 1.

On March 21, Congress passed and the president signed a bill that gave the district court in 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 of Theresa Marie Schiavo under the Constitution or laws of the United States. . . ."

The Schiavos then sued for an injunction based on (i) violation of the Fourteenth Amendment due process right to a fair and impartial trial; (ii) violation of the Fourteenth Amendment procedural due process right; and (iii) violation of the Fourteenth Amendment right to equal protection. The Schiavos also had a claim based on the Religious Land Use and Institutionalized Persons Act, a federal law.

Because the Schiavos' was a case "arising under this Constitution [and] the Laws of the United States," U.S. Const. Art III, Section 2, and Congress passed a law giving jurisdiction to the federal court in Florida, the case was properly in that court. So, as to the courts, the answer to your bonus question is Article III, section 2.

What do I win?

JB said...

The authority comes under Amendment XIV Section 5 which provides Congress with the power to enforce the 14th amendments protections with legislation. The question of "Should a person in a perpetual vegetative state finally be allowed to die after 15 years?" Is a ...misleading question however, you're assuming that Terri is actually in a PVS. I don't know that I really disagree with you in the way you pose the question. However, according to this article http://msnbc.msn.com/id/7257835 the possibility of someone living 15 years with PVS is 1 in 15,000 to 75,000.

Another way to look at it is, (since Terri's was diagnosed with PVS in 1990) is that there is .0013%-.0067% chance that (knowing what we know now) Terri would live this long. Given those odds, and that she appears capable of surviving in definately that should cause us to question the 1990 diagnosis. The major issue is does Terri even have PVS, a question that can't be resolved if she's left to die. But, you assume that fact into evidence, when most on the other side have that as the true bone of contention.

Thomas said...

How about Amendment VIII: "nor cruel and unusual punishments inflicted"? Yes, I know it's supposed to apply to criminals, but what the hell. The Constitution has been so twisted out of shape that another little bit of torque won't matter. I wonder if the Supremes can bring themselves to save Terri Schiavo from a harsh death after having spared some rather vicious juvenile killers?

Anonymous said...

JB: "Given those odds, and that she appears capable of surviving indefinately that should cause us to question the 1990 diagnosis. The major issue is does Terri even have PVS, a question that can't be resolved if she's left to die."

Even if the diagnoses in 1990 was a misdiagnoses, there were numerous number of tests done by multiple doctors from several facilities over the 15 year span. They can't *ALL* be wrong; she has PVS. Granted that there can be medical mistakes and medical miracles; the likelihood of Terry ever coming out of her vegetative state is possibly even smaller than the statistics (.0067%) you provided for her actually surviving for so long.

I'm also going to have to say that it's even crueler to starve her to death. Why not just end everyone's misery now by giving her a respectable quick death? If I was in a vegetative state for more than 2 years, this is what I would want.


Glen Whitman said...

MLS -- I'll give you a cookie the next time we meet. But maybe you can answer these questions:

1. If Florida's laws or legal procedures for cases like Schiavo's might violate the 14th amendment of the US Constitution, don't the federal courts *already* have jurisdiction to hear appeals? Why was a special law required in this case, if there already existed constitutional grounds for appealing to federal court?

2. Are you saying that Article III, section 1 gives the federal courts the power to hear *any& case that Congress chooses to let them hear? I would think the "provided it be not extended beyond the boundaries fixed by the Constitution" proviso should apply. That is, the subject matter must independently fall within the purview of the federal government for federal courts to claim proper jurisdiction. So what *other* clause of the constitution do you think authorizes federal action in this area?

Anonymous said...

The E.L..A...S....T.....I......C

Clause. Chocolate chip, please!

MLS said...

1. Yes, they already could have heard the case, and no, they couldn't have -- at least, not meaningfully. Remember, this isn't an appeal from the state court determination -- that's forbidden under federalism principles. This is more like a collateral attack, the analog to seeking a federal writ of habeas corpus to challenge a state court conviction. I don't think that the act would have been necessary for the Schiavos to file their federal claims, but it was necessary to permit de novo review of some of the issue already considered by the state court.

2. I'm certainly not saying that, and I think perhaps I misunderstand your question. Congress cannot give federal courts the power to hear cases that doesn't fall within the judicial power of the United States, per Art. III, s. 2, which "extend[s] to all Cases, in Law and Equity, arising under this Constitution, [or] the Laws of the United States." But the Schiavos' case arose under the Constitution (the 14th amendment's due process and equal protection clause) and the laws of the united states (RLUIPA). So you don't need another provision.

Put differently, I think you're focusing on the wrong thing. The importance of the Schiavo bill wasn't that it purported to create federal jurisdiction over the parents' constitutional claims -- there already was nominal jurisdiction. the significance of the bill was to effectively abbrogate certain abstention prinicples that would have rendered any federal review meaningless in light of what had already happened in the state courts.

Does that answer your questions?

Glen Whitman said...

"I don't think that the act would have been necessary for the Schiavos to file their federal claims, but it was necessary to permit de novo review of some of the issue[s] already considered by the state court."

I take it the issues in question are those relating to Schiavo's medical status, whether she had in fact expressed a desire not to be kept alive by artificial means, etc. In other words, issues of *fact* decided by a state district court. (I'm not claiming the issues were decided correctly, just that they were decided.)

So the Congressional action was required to allow a federal court to reconsider issues of fact already decided at the state level. What authority does the federal gov't have to do so? An analogy: Consider the Scott Peterson case. Peterson has been sentenced to death. The death penalty has constitutional ramifications, since the U.S. Supreme Court has ruled (both ways!) on its consistency with the 8th Amendment. Now, does the implication of a federal matter (the 8th Amendment) mean that Congress could pass a law to let a federal court examine the validity of forensic evidence used to convict Peterson? I would assume not. If it does, then there is *no* bound to the federal government's ability to get involved in *any* case (criminal or civil) that it wants, because constitutional matters are at least tangentially implicated in all cases.

Glen Whitman said...

Just to be clear: from everything I've read about the Schiavo legislation, it sounds like the issues Congress wanted heard are questions of constitutional law, not questions of fact. But if that's so, then the federal courts already had jurisdiction (as you've said) and no additional law was necessary. So just what are these issues that the federal courts needed authorization to consider "de novo", if we rule out both constitutional issues they already had the authority to consider and issues of fact that the federal gov't has no legitimate business considering?

Glen Whitman said...

Nevermind, MLS, I did some further research and I get it now. I may post on it later, since I'm betting I'm not the only person who was confused.

Anonymous said...

Glen: via BoingBoing, i found this funny writing from some guy on craigslist.

Donate your persistent vegetative state in advance to be cynically manipulated for the cause of your choice.

"If I am rendered comatose and determined to be in a persistent vegetative state (PVS) for a period longer than one month and if no imminent cure is forthcoming, I do not wish to be kept alive by artificial means including but not limited to nourishment, hydration, etc.

If, due to the absurd political state of affairs in this country, my persistent vegetative state and impending unplugging can be parlayed into some sort of political leverage, I wholly endorse using my predicament in whatever way possible for the purposes of passing legislation favorable to my general political and ethical outlook. Here is a list of top-tier causes I support and will continue to support, both while in my PVS and after my eventual death.

* Debt Relief to Impoverished Nations: I will agree to stay in a PVS for an indeterminate amount of time if the United States aggressively pursues a policy of debt relief and debt forgiveness to developing and impoverished nations.

* Nuclear Disarmament and De-escalation: I will agree to stay in a PVS for a open-ended period of time if the United States aggressively pursues a policy of nuclear disarmament and de-escalation. By this I mean desisting from developing new bellicose nuclear technologies and providing significant non-military incentives for nations to avoid nuclear armament."


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