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Friday, March 25, 2005

Defiance of Congress must not be allowed to stand

Anne Coulter is right. It is time for the legislative and executive branches to disregard judicial rulings and exert their proper constitutional powers in the Schiavo case. The courts have defied a congressional subpoena that calls for Schiavo to testify (alive) before Congress, and they have defied the express intent of the recently passed law that Schiavo’s case be considered anew. Both actions of Congress fall fully within its proper constitutional powers. The Fifth Amendment says that life shall not be deprived without due process of law, and under the doctrine of “incorporation,” the Fifth Amendment applies to state actions. At the same time, Congress is empowered to pass laws “necessary and proper” to the enforcement of all constitutional provisions. Thus Congress is empowered to pass laws setting minimum due process standards that states must abide by in arriving at life-terminating decisions.

The Schiavo case is a proper subject for Congressional scrutiny, both in itself, and for the light it casts on the propriety of the current legal process. One the one hand the case raises fundamental issues, turning the doctrine of a “living will” on its head. Instead of needing to establish a “living will” in order to protect one’s right to die, it now appears that one needs a “living will” in order to keep from being put to death. (Hat tip Yippiee Kai Yay.) The Schiavo case also provides a test for the propriety of the existing legal process. The case looks to be a can of worms. Terri’s husband Michael has refused to allow tests to be performed that would determine Terri’s level of brain activity. Two nurses have filed affidavits claiming that Michael managed her care abusively. One filed a police report claiming evidence that Michael tried to kill Terri with insulin injections, leading to the nurse’s firing. On the other hand, Michael’s defenders tell their own compelling story of his integrity. Hauling all the doctors and nurses before Congress and getting to the truth would reveal much about the integrity of the judicial process as it now stands. Does leaving the life-termination decision entirely up to an estranged husband adequately represent his wife's interest in determining whether she should die? In the absence of a living will, why is the fact that her parents are willing to care for her given no weight?

When the courts defy the legitimate powers of the other branches, the remedy contemplated by the framers of the Constitution is that the other branches should slap the courts down, either ignoring their rulings or taking action against them. Hamilton does not say this explicitly, but it is implicit in his claim that judicial power is checked by the inherent feebleness of the judicial branch: that it possesses “neither FORCE nor WILL, but merely judgment,” and “is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.” (Alexander Hamilton, Federalist 78.)

That jeopardy must be real in order for the power of the judiciary to be checked, as it is supposed to be. If the co-ordinate branches of government simply submit when the courts defy proper constitutional powers, then the courts assume tyrannical power and the system breaks. This has been happening since the New Deal, and exactly as Hamilton warned. Liberty is only safe “so long as the judiciary remains truly distinct from both the legislature and the Executive.” (Federalist 78 again.) But in the New Deal, the Court became a lackey. Its job is to uphold the master servant relation between the people and their representatives: “the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” In the New Deal, our representatives were unwilling to be constrained by the Constitution. To get around the system of limited enumerated powers, FDR tried to expand and pack the Court, which knuckled under to the pressure. Thus was the Court empowered to write a new Constitution.

The original plan was that if the Court ever substituted its will for the people’s in this way, it would be checked by the superior power of the other branches, but in the New Deal, the other branches were encouraging the Court to throw over the Constitution. The other branches gave up their power to check the Court in exchange for the Court delivering them the unconstitutional power they craved. This is the deal-with-the-devil that needs to be undone. The Schiavo case is only the merest symptom. Restoring limited powers will at this point require constitutional amendments. But we can start by reaffirming the founding understanding that the courts are, by design, the weakest branch of government, intended to be deterred from usurping power by being in constant jeopardy from the more powerful branches of government. That jeopardy has to be real for the system to function. That means, at the least, that if we reach the present extreme, where the courts are flat out defying the legitimate powers of Congress, they must not be obeyed.

On a more detailed note: Hamilton was cognizant of the danger of the courts usurping legislative power but dismissed it on the grounds that there is nothing to be done about it! “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.” His point is that the only alternative to an independent judiciary is to not have a distinct judiciary at all, which would be even worse. We might as well get as much of a separation of powers as we can by having an independent judiciary, and make it as independent as we can by giving judges life tenure, conditional only on “good behavior.”

Hamilton’s analysis of this point elides the full danger of judicial power. He makes no distinction between the danger of will and judgment occurring together in the legislature and will and judgment combined in the judiciary, but in fact there is a huge difference. The people can recall their legislative representatives after four years if they don’t like how they are performing. Judges, in the constitutional scheme that Hamilton was urging ratification for, are appointed for life. It is easy to see why Hamilton did not delve into this difference, since he was arguing for life terms for judges. Delving into the heavier cost of mixing will and judgment under life terms would cut against life terms. Thus Hamilton understated the case against judicial power.

Still, Hamilton made the critical point: that the danger of will and judgment being combined in the judiciary is checked by the fact that the judiciary is “beyond comparison the weakest of the three departments of power.” That weakness depends on the court’s jeopardy—its liability to being overpowered should it misbehave. When it does misbehave, that check needs to come into play, or we have been usurped. That means that the recent court rulings in the Schiavo case should be ignored. Schaivo’s care should be taken over by either the president or his brother, while Judge Greer should be arrested for flouting Schiavo’s congressional subpoena.

UPDATE: Ann Althouse has taken a close look at the Schiavo bill and says that Judge Whittemore did not flout the law. The bill only authorized de novo consideration of federal claims, which would be the claim that Terri's due process rights were not fulfilled in the decision to deprive her life. Althouse says that the "feebleness" of Terri's due process means they fail to meet the criterion for further consideration: that they present a likelihood of succeeding on the merits.

I do not think it is so obvious that Terri's due process claims are feeble. A tremendous amount of evidence against the reliability of Michael Schiavo as a spokesman for his wife's wishes seems to have been dismissed. If this can be traced to something deficient in the Florida process--the deference it gives to spouses, perhaps, in spite of impugning evidence--that could be a proper matter for federal review. There is also the question of whether due process is satisfied when, in the absence of a living will, speculation about what the person would have thought when competent is given complete precedence over what the person of diminished capacity actually thinks. There is evidence that Terri does not want to die--that when asked she howled in protest. Why aren't her present wishes given any weight?

These are serious federal questions that cannot simply be dismissed without looking into them. But Judge Whittemore did simply dismiss them. I don't know what issues Terri's lawyers raised, but it seems pretty arrogant of Whittemore not to think the issue through enough himself to see that it might raise unsettled questions. That said, the obvious flouting (and the one I have focused on) is Judge Greer's flouting of Terri's congressional subpoena.

Congress can go further in specifying due process requirements than the Court can. Thus, for instance, we have the voting rights act of 1965. The Court could not have required all the voting-rights remedies that Congress specified in the voting act. By the same token, if it turns out that Terri's lawyers have no valid due-process claims to press under Terri's law, that doesn't mean that there are not due-process requirements that Congress could legitimately impose. State's must be allowed flexibility. They must be allowed to achieve "ordered liberty" in whatever satisfactory way they can discover. But it is not only within the power of Congress to set a minimum standard for what constitutes a satisfactory level of "ordered liberty," it is also an obligation. This is Congress’s job, and looking into the Schiavo case is pursuant to the fulfillment of that obligation.

In sum, it is certainly possible that there is no compelling argument to be made that Terri's due process rights REQUIRE reconsideration of her case (though this result cannot be dismissed out of hand). At the same time, there is no doubt at all that Congress has the power to set due process requirements that could affect Terri's case, and that it can properly call her as a witness pertinent to such legislation. Whittemore MIGHT not have flouted the law. Greer definitely did.

UPDATE: Powerline posts a different quote from Hamilton, urging use of impeachment when a check on the Judiciary is needed. That is a useful tool, but not quite to the point. It does not overturn the particular judicial outrage needs to be checked, but only responds to it with a punishment. Sometimes, checking the judiciary will require direct overthrow of judicial rulings. Where impeachment will suffice, it will probably be preferable.

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