The Republicans in Congress have ignored the most basic rules of constitutional law in their political grandstanding over Terry Schiavo. The developments over the last few days indicate that the Republican majority has no respect for more than 200 years of constitutional principles if they stand in the way of pleasing the party's right-wing constituency.
In an effort to block a Florida trial court order to end artificial feeding of Schiavo, Republicans have devised unprecedented devices to have Congress interfere with a single case pending in Florida state court. These efforts violate fundamental constitutional principles of separation of powers and federalism.
For example, on Friday, Republicans tried to halt the removal of feeding tubes from Schiavo by issuing subpoenas for Schiavo, her husband and others to appear in Washington. As part of the subpoena, House Republicans commanded that Schiavo's feeding tube not be removed. The Florida trial judge presiding over the case correctly ignored these orders and the feeding tube was removed on Friday.
Congress has no power to issue injunctions in specific cases. In the American system of separation of powers, that is solely the judiciary's role. Congress certainly has the authority to conduct investigations and has the subpoena power to aid in gathering information. But House Republicans were not using their subpoena power as part of an investigation; they were abusing it in an effort to try and stop a result that they disliked.
The most recent development is that the House and the Senate have passed a bill to transfer the Schiavo case to federal court by allowing a petition for a writ of habeas corpus to be filed on her behalf. The law applies to only one case: Terry Schiavo's. President Bush returned from his vacation to sign the bill early Monday morning.
This is blatant forum shopping; members of Congress who don't like the state court's decision are trying to move it to federal court in the hope that a different judge will give them the result they want. Never before in American history has Congress passed a law designed to transfer a single case from state to federal court. Never before has habeas corpus, which exists to provide review of criminal convictions, been used in this way.
Congress lacks the constitutional authority to overturn a state court decision after there already is a final judgment. Also, Article III of the Constitution clearly limits the circumstances in which federal courts may be involved and this fits in none of the categories where federal court review is allowed. There is no question arising under federal law presented by the Schiavo case; nor does the case involve citizens of different states or any other basis for federal jurisdiction.
Conservatives are fond of invoking states' rights and federalism, and in the last decade they have greatly narrowed the ability of state prisoners to have access to federal courts via the writ of habeas corpus. Congress' action, removing a particular case from state to federal court because it does not like the result, is inconsistent with the most elemental notions of states' rights and the autonomy of state courts.
What is lost in all of the last-minute machinations is the long procedural history of this sad case. Terry Schiavo lost consciousness in 1990. A state trial court held a lengthy hearing and determined that it was Schiavo's intention to not be kept alive artificially in these circumstances. The Florida legislature attempted to overturn this decision by statute, but the Florida Supreme Court unanimously decided that the law was unconstitutional because the legislature cannot overturn a court decision. The United States Supreme Court denied review. There have been countless other hearings in state court and the state trial judge has always come to the same conclusions: Terry Schiavo never will regain consciousness and it was her intent to not be kept alive artificially in these circumstances.
This is not a person being taken off of artificial feeding in a cavalier manner. There could not have been more thorough and careful proceedings throughout, all conducted under a national spotlight. But Republicans see a political opportunity and are doing everything they can to exploit it. Republicans using Terry Schiavo in this way is sad, but their ignoring the most basic principles of constitutional law for their political gain is shameful.