Congress stikes out on Schiavo, with Gordon Lloyd (San Francisco Chronicle) March 23, 2005

Hard cases make bad law. This legal aphorism, widely quoted by judges and law professors, needs no better illustration than Congress and President Bush rushing back to Washington over the weekend to put a new law on the books for Terri Schiavo.

This gem of legal wisdom fits the Schiavo case like federalism used to fit Republicans. Hard cases — in which the application of existing law doesn’t resolve a difficult case in the way a judge or jury (or now Congress) might like — sometimes tempt decision-makers to stretch or change the law. Even when this produces a short-term gain, it nearly always results in damage to the law and to those who must be judged by it.

In this case, federalism has been twisted and shrunk like some precious garment run through the ringer and a hot dryer. While our hearts go out to all involved in this life-and-death drama, Congress had no superior expertise to that exercised by the Florida judiciary and the U.S. Supreme Court, and it had no proper constitutional basis to intervene in this case.

Federalism is the bedrock doctrine of our republic, establishing the principle that who makes decisions on various matters is important. So the first question here is whether medical care should be decided by government or by families and individuals in consultation with physicians. Even if government is to be involved, the Constitution requires us to answer two more questions: which branch of government (executive, legislative or judicial) is appropriate and then at which level (federal, state or local). These are the rules that guide our federal republic.

For 15 years, this case has worked its way through the proper venues: family, medical experts and, since no federal issue is presented, judicial review in state courts. By now, 19 judges in 6 courts have reviewed the matter, and the U.S. Supreme Court has looked at the case three times, most recently on Friday, and declined to hear it. With an abundance of due process, this was federalism at work.

What wasn’t working for leaders of Congress is that they did not like the outcome. And so, in our culture of endless appeals, Congress followed a new rule: If you don’t like the outcome of a proper process, find another forum. House and Senate leaders essentially commandeered the issue to the federal legislative level and, ignoring their lack of jurisdiction, Congress passed a law opening the federal courts to the Schiavo case. This wasn’t even public policy, it was private policy. Imagine now the floodgates that have been opened by this law. Why not ask your congressman to put in a bill making your personal crisis a federal issue?

If violations of federalism were subject to “three strikes” penalties, Congress would be “out.” First they took a matter that belongs to families, individuals and their doctors, subject to state judicial review, and strong-armed it to Washington: strike one. Second, the matter came not to the judicial branch — the U.S. Supreme Court at least has ultimate jurisdiction over state court opinions — but to the legislative branch: strike two. Then they passed a piece of federal legislation that pertains to one individual only: strike three, you’re out.

In their rush to judgment, Republicans in Washington have once again turned their back on traditional federalism, taking it upon themselves to solve every problem, be it education, tort reform or Terri Schiavo’s feeding tube. And as difficult as a “no” vote must have been in this wrenching drama, Democrats showed little backbone in standing up to the stampede, with a majority of House Democrats not voting. Hard cases do make bad law, and Congress and the president have turned their back on federal limits and done just that.

This op/ed appeared on Page B-9.