Legal questions abound about legislation to keep Schiavo alive | McClatchy Washington Bureau

WASHINGTON—Congress touched off a political firestorm with its 11th-hour effort to get Terri Schiavo's case heard in federal court, but some legal experts say the legislation raises even more pivotal questions about limitations on congressional power.

Some scholars say the law, which is expected to be signed by President Bush Monday, tramples important constitutional mechanisms that separate the branches of government and prevent retroactive lawmaking. Others say it may be ill advised and even unprecedented, but probably doesn't exceed what Congress can legally do.

Nearly everyone agrees, though, that the law could itself be the subject of a federal court challenge that might require the involvement of the Supreme Court.

"It will be very interesting, because I just can't think of another case that's like this," said Nathaniel Persily, a University of Pennsylvania law professor. "I mean, our guts tell us it's wrong for Congress to try to legislate the result of a particular case, and in general, courts frown on retroactivity and laws that are aimed at selecting out a particular person. But I can't tell you what context a court would use to decide this particular issue, because it's so unusual."

Douglas Laycock, a University of Texas law professor, said there wasn't much ambiguity to the issue.

"Congress is saying no matter how final a matter is, no matter how settled it is in state court, we can tell you to go back and redo it in federal court," he said. "Congress gets to write statutes. It doesn't decide cases, and that's what they seem to be doing here."

The law Congress is set to pass says that the parents of Terri Schiavo, who has been in a vegetative state for 15 years, can go to a federal court to argue that removing her feeding tubes violates her rights under the U.S. Constitution or under federal law.

Congress says the federal court can't consider the many state court judgments that concluded that her husband, as legal guardian, had a right to have her feeding tubes removed. And it can't consider the fact that the Florida Supreme Court has reviewed those state court decisions and concluded that they passed legal muster.

The goal of the legislation is to get Schiavo's parents a full hearing in federal court, and the new law also commands the federal court to provide "injunctive relief" from the state court decisions, which would presumably have Schiavo's feeding tubes re-connected while the federal court proceedings unfold, which could take a year or more.

The legislation raises several questions about Congress' authority, experts say. One is whether it is treading on ground that is reserved exclusively for the judiciary in the Constitution; another is whether it is simply beyond the scope of Congress' own enumerated powers in the Constitution.

There are also questions about whether Congress is improperly blurring the lines between federal and state authority, and whether it is changing a law and applying it retroactively to a case that's already settled.

Many of the potential issues present novel questions about the nature of our government.

"It's a great final exam question for a law school class," Persily said. "We just don't see this kind of thing play out very often in real courts."

Ilya Somin, a professor at George Mason University, said he thinks Congress has "dubious policy grounds" for the law but doesn't think lawmakers went beyond the Constitution to enact the legislation.

"Basically, this is about the difference between substantive and procedural rights in federal court," Somin said. "I think if they had said there was a substantive federal law that said you can't remove these feeding tubes, it would be unconstitutional. Instead, they just said her parents can file their claims in federal court, and they have to come up with a federal claim, which won't be easy."

Somin said the bill won't accomplish much, and its narrow scope is probably what squares it with the Constitution.

"There's a long history of Congress making procedural rules for federal courts."

Somin added that he thought the bigger problem with Congress' action was its infidelity to the principles of federalism, which would tend to leave questions like those in the Schiavo case to state courts rather than federal courts.

Typically, conservatives have been the ones to champion federalism the loudest—especially in legal circles.

"But lately, there have been conservative efforts to trample federalism in the service of their particular policy goals," said Somin, who recently co-authored a law review article urging liberals to re-think their historic opposition to states' rights.

He pointed out the Bush administration's attack on Oregon's assisted suicide law and California's medical marijuana law, its championing of a partial-birth abortion bill and the sweeping No Child Left Behind Act as examples of conservative abuses of federal power.

"The Schiavo bill is of a piece with these items," Somin said, "and it proves that issues on both sides of the debate are vulnerable when federal authorities refuse to leave these questions to states."

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(c) 2005, Knight Ridder/Tribune Information Services.

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