President Bush has signed a bill aimed at keeping Terri Schiavo alive. Bush signed the Bill at 1:11 a.m. after an extraordinary all night session of Congress. The bill gives federal jurisdiction in the case by Terri's parents to keep her alive.
A federal judge in Tampa is already considering the case. Reuters:

David Gibbs, a lawyer for Schiavo's parents, filed a lawsuit and a request for a restraining order with the federal court as soon as Bush signed the bill in Washington, CNN said.

Bush had cut short a Texas vacation and flown back to Washington to be available for an immediate signing.

"Today, I signed into law a bill that will allow federal courts to hear a claim by or on behalf of Terri Schiavo for violation of her rights relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life," Bush said in a written statement.

The House of Representatives passed the measure 203-58 shortly after midnight following three hours of debate. The Senate cleared it unanimously Sunday.

"We are very, very thankful to have crossed this bridge," Suzanne Vitadamo, Terri Schiavo's sister, said after the House vote. "We are hopeful, we are very hopeful, that the federal courts will follow the will of Congress and save my sister's life."

Schiavo's husband and legal guardian, Michael Schiavo, said he was outraged by the government's intervention.

"It's a sad day for Terri and it's a sad day for everybody in America because the government is going to trample all over your personal and private matters," he said on NBC. "This is an outrage. They have no business in this matter."

Speaking on CNN, he vowed to fight on in the courts.

The measure gives U.S. District Court in Tampa, Florida, jurisdiction on a case that has been taken up by Republican congressional leaders and galvanized activists on both sides of the emotional end-of-life issue.

Ted Hires, president of the Justice Coalition of Jacksonville, Fl., faxed his formal request late Saturday night to Alberto Gonzalez, U.S. Attorney General, in regard to the alleged federal violations committed under the Americans with Disabilities Act.

Hires has urged all Americans to contact the Attorney GeneralÂ’s office, requesting him to investigate the facts of the violations and take Terri Schiavo into protective custody until these allegations have been thoroughly reviewed by the U.S. Department of Justice.

The Justice Coalition is a victimsÂ’ rights group who believes that TerriÂ’s civil rights as a disabled adult, her due process and health care provisions have been unjustly denied by the Florida Courts.

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?

What Cohen really means is that the law 'is not fair'. Lawyers are trained to believe that anything they think isn't fair raises some sort of equal protection or due process claim. Cohen continues:

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.

However, this does not stop Congress and the courts from imposing the federal government on what are normally thought of as state matters on almost a daily basis.

And just because Congress does not normally exercise this power, does not mean the power does not rest with Congress. A right not exercised cannot imply a right does not exist.

Further, the argument that Terri has a civil rights claim to life is much less tenious than Larry Tribes assertion that Terri has a privacy claim to keep the feeding tube out of her body.

Life is explicitly gauranteed in the 14th Amendment of the Constitution. In fact, it is one of the few things the Constitution explicitly prohibits states from taking away without due process.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law...

Of course, it will be argued that Terri has been given due process, and thus the state may deny her her life.

Granted.

But Terri's law does one simple thing: it gives the federal courts exactly what the 14th Amendment explicitly says they can do, the authority to find out if the state of Florida has denied Terri her right to life.

Let us not forget that however limited federal power ought to be in the Constitutional scheme of things, there are certain areas where such power is explicitly granted. Even to strict constructionists, then, Terri's law does not violate any Constitutional principles.

UPDATE: Joyner chimes in that the seperation of powers claim is the most pursuasive and dismisses my right to life argument. I'll focus on the seperation of powers claim.

This rests upon assumption that the three branches of government are co-equal branches. Thus, the legislature is overstepping it's bounds by acting on what is a judicial function.

That assumption is not correct.

The Constitution does not set up a system of co-equal branches. Congress, is clearly more powerful, in the Madisonian system, than the other two branches.

In the words of Alexander Bickel, the Judiciary is "The Least Dangerous Branch."

Federalist #78 clarifies why that is:

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power

Further, what remedy does the public have when courts do on occasion act in a dangerous manner?

The Constitutional system is such that Congress, or another legislative or executive body, act in the very manner in which they are now acting.

For far too long the American public has been led to think that court decisions are the final word. We act as if courts have special knowledge. We act as if Dworkin's 'Hercules' really is behind the bench.

The Constitution was designed in such a way that judicial decisions could be overturned by legislative and executive acts. The pardon, for instance, is one such case where an executive--for any reason--can grant clemency and let prisoners out of jail.

If the duty of judges is to declare what the law is, why is it not the duty of legislatures to clarify laws that they beleive judges are interpreting erroneously? In the case of Terri Schiavo the Florida legislature has attempted time and time again to clarify the meaning of Floriga law so that a presumption will be given to life.

But the same Florida courts that the legistlature is attempting to check have declared the acts of the legislature unconstututional. That is convenient, at best.

In our Madisonian democracy there is no 'trump card'. In fact, the political process is neverending. As originally designed, politics in America is a never ending game. There is no end point where one branch of government wins.

Each branch of government has certain powers it can use to attempt to thwart the acts of the others. The judiciary is no exception. Congress's move here is simply the normal functioning of checks and balances, nothing more.

The next play belongs to the courts.

Posted by: Rusty at 08:57 AM | Comments (11) | Add Comment
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