Judiciary Under Attack?
 

Scary. I got a little worried when some folks in Florida started asking Jeb Bush to ignore the court order. After looking at this law Congress passed it was probably unconstitutional but don't know for sure.

Re: Judiciary Under Attack?
 

[ QUOTE ]
After looking at this law Congress passed it was probably unconstitutional but don't know for sure.

[/ QUOTE ]

I don't know either. It's certainly extraordinary and goes against the spirit of the constitution. However, I doubt that it was technically unconstitutional.

The Law Congress Passed Regarding Terri Schiavo
 

Text of the Law

For the relief of the parents of Theresa Marie Schiavo.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
Related Links:
The Terri Schiavo Case

Powers of Attorney, Living Wills, and Advance Directives

Lawyers in the Case

Health Care Lawyers

Wills, Trusts, and Estate Planning Lawyers



SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.


The United States District Court for the Middle District of Florida shall have 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 relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.


Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

SEC. 3. RELIEF.


After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 4. TIME FOR FILING.

Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.
SEC. 5. NO CHANGE OF SUBSTANTIVE RIGHTS.

Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.
SEC. 6. NO EFFECT ON ASSISTING SUICIDE.

Nothing in this Act shall be construed to confer additional jurisdiction on any court to consider any claim related--
(1) to assisting suicide, or
(2) a State law regarding assisting suicide.

SEC. 7. NO PRECEDENT FOR FUTURE LEGISLATION.

Nothing in this Act shall constitute a precedent with respect to future legislation, including the provision of private relief bills.
SEC. 8. NO AFFECT ON THE PATIENT SELF-DETERMINATION ACT OF 1990.

Nothing in this Act shall affect the rights of any person under the Patient Self- Determination Act of 1990.
SEC. 9. SENSE OF THE CONGRESS.

It is the Sense of Congress that the 109th Congress should consider policies regarding the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid, or medical care.


Bill of Attainder? I don't have an informed opinion but would like to know from those that do have one if they feel inclined. Here's a link to some info on the Bill of Attainder I dug up.

Bill of Attainder

Seems like this law could be based on:

"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature." U.S. v. Brown, 381 U.S. 437, 440 (1965).



Haven't had a chance to read the Supreme Court rulings cited but I will. TIA for any input.

Update I guess this shows how naive I am but I was totally surprised that this law was written for Terri Schiavo only.

Re: The Law Congress Passed Regarding Terri Schiavo
 

[ QUOTE ]
"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature."

[/ QUOTE ]

This is probably true. However, the founding fathers could have (should have) used broader language if that's what they wanted to implement. Instead they chose a narrow term with a narrow definition.

Re: Ideal System...Schiavo as an illustration
 

There was a law passed that asked that this case be given de novo review and that didn't happen. So we have the judicial branch defying both the legislative and executive branches at both a state and federal level

Exactly right.

Re: Ideal System...Schiavo as an illustration
 

The problem in this case was not an inability of the courts to determine what the legislative enactments called for. They simply refused to follow them at both the state and federal level.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
There was a law passed that asked that this case be given de novo review and that didn't happen. So we have the judicial branch defying both the legislative and executive branches at both a state and federal level

[/ QUOTE ]

I don't want to get overly bogged down in an argument about the process, but let me just add to this.

The federal law specifically applicable to Terri was silent as to what the standard for a Temporary Injunction would be. The general standard for a Temporary Injunction is, partly, that the moving party has to establish a substantial likelihood of success on the merits of the case. Basically, this means that the court will temporarily require a party to do something so as to avoid irreparable harm where the moving party will likely win anyway.

The Schindler's moved for a Temporary Injunction. The court followed the law by applying the Temporary Injunction standards.

The De Novo review standard only comes into play when there is a full trial on the merits, not in a hearing on temporary relief.

Re: Ideal System...Schiavo as an illustration
 

"The De Novo review standard only comes into play when there is a full trial on the merits, not in a hearing on temporary relief."

Precisely the reason why the standard applied with respect to the TRO is wrong. No way a final non-appealable resolution of the case comes about prior to Terry's having already died.

Re: Ideal System...Schiavo as an illustration
 

Only an activist court would change existing law for one case. If the legislature wanted to do that, they could have. The existing law for a temporary injunction is that you have to prove a substantial likelihood of success on the merits.

Re: Ideal System...Schiavo as an illustration
 

[ QUOTE ]
[ QUOTE ]
The courts should try to interpret honestly and objectively, rather than try to make their own laws. Many courts fail in this, and this is a problem that needs to be corrected.

[/ QUOTE ]

The blanket, ridiculous critical statements about the judicial system seem keep proliferating.

.

[/ QUOTE ]

He means, they should rule according to my beliefs. Courts doing that are working honestly and objectively. If they rule against my set of beliefs, then they are "making their own laws" and are activist bastards.