Terry Schiavo and Federalism, or, Federalism is not a Prostitute

Poor federalism!  Those who spread the good word about Lopez and Morrison are now arguing that Congress can regulate domestic affairs.  And those who screamed bloody murder - "conservative activism!" - when the Court hinted that federalism might mean that Congress can't create a common law torts have now switched sides -- Let Terri Schiavo die, so that federalism may live.

In short, federalism has been kicked from the bed of conservatives and thrust into the arms of the liberals.  What a way to treat a doctrine.

I don't want to enter the argument, because it's disgusting.  People who supposedly lived by principles have ditched those principles to stay loyal to their teams.  And those who only principle was, "Let Congress run wild," now pretend that federalism matters.

But the Schiavo matter reminded me of the rationale of United States v. Lopez.  There, Chief Justice Rehnquist wrote:

We pause to consider the implications of the Government's arguments. The Government admits, under its "costs of crime" reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. Similarly, under the Government's "national productivity" reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

In United States v. Morrison, Chief Justice Rehnquist echoed Lopez's reasoning:

[The government's] reasoning, moreover, will not limit Congress to regulating violence but may, as we suggested in Lopez, be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. 

In Lopez and Morrison the Court was incredulous that Congress could draft a Uniform Family Law Act.  Indeed, I've never met a conservative who would approve of Congress' regulating domestic disputes.  Here, we need to stay focused on what Schivo involves.

The Schiavo controversy is nothing but a family law dispute.  Yes, the stakes are high, and literally involve life or death.  But in family law, the stakes are always high.  If a family law judge awards custody to the wrong parent or relative, a child may be molested, abused, or killed.  Still, Congress does not have the enumerated power to control family law outcomes.

Under Florida law, the husband gets to decide whether Mrs. Schiavo will remain with a feeding tube in her mouth.  Florida courts have determined that Mr. Schiavo's judgment about whether or not Mrs. Schiavo will live or die is to be respected.  That should be the end of it.

Unless one is willing to concede that Congress has the power to regulate family law, then one can not consistenty argue that Congress has power over Terri Schiavo.

Comments

[Tom McKenna]

Excuse me, but it seems you of all people should be rejoicing that Congress has exercized its Art. III authority (remember that?) to establish the federal court's jurisdiction to directly consider, NOT a "domestic" case, but an allegation of deprivation of life without due process of law, a concept you might remember is expressly mentioned in the 14th Amendment. So this action of Congress is entirely consistent with federalism and strict construction of the Constitution. In fact, I hope to see Congress "adjusting" the jurisdiction of the federal courts in order to effect the popular will much more often in the future!

[Three Generations]

I'm no expert on Federalism, but it seems rather strange to me to claim a failure of due process when the briefs filed in Federal Court are replete with citations to State Court hearings and opinions on the same case.

[Mahan Atma]

"Excuse me, but it seems you of all people should be rejoicing that Congress has exercized its Art. III authority...

Federalism is not just about the limits of Article III, it's also about the structural state/federal balance. Where Congress mandates that the federal court use de novo review, that embodies a complete disregard for the state courts.

I would not have objected to the law if it had incorporated a somewhat more deferential standard of review for the state court judgments, and if it had not been targeted solely at the parties in this case.

Honestly, what sense does it make to have parties conducting more than a decade of state court litigation, only to throw out all the state court judgments as soon as the losing party files in federal court?

And why, prey tell, would a federal judge be more equipped to handle this case than a state court judge? State court judges deal with these issues all the time; federal judges almost never. State court judges also deal with claims of federal constitutional violations all the time. Why would you assume a federal court can come to a better result?

Would your argument still hold appeal if it turned out that federal courts were more likely to pull the plug on patients than state courts?