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PLRA Exhaustion and Procedural Default

Is the Schiavo law unconstitutional?

First things first: I believe that Terri Schiavo is already dead and that the determination to remove her body from the feeding tube is the correct one. I explained why here.

But there’s a more technical question about whether Congress has the authority to pass a law—which they did—giving federal courts jurisdiction over the case. Many people on my side of the Schiavo debate believe this law is unconstitutional. I did too, at first, but on reflection, I’m not so sure.

It is of course true that Congress has no constitutional authority over any of the substantive issues in this case: medical decisions, family law, and so forth are all among the “numerous and indefinite,” issues left to states under the federal Constitution. But the Schiavo law—Public Law 109-3, to be precise—does not address the merits of the controversy at all. Rather, it says that

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.

Does Congress have authority to pass this law? I think so. The Fourteenth Amendment says that no person shall be deprived of life, liberty or property without due process of law, and that the Congress has authority to enforce the Amendment by appropriate legislation. If Congress suspects that Schiavo is being deprived of life in violation of federal rights protected under the Amendment, it would seem perfectly appropriate for Congress to create a federal forum to make that determination.

Congress has set up special courts under the Fourteenth Amendment before. In the Civil Rights Removal Statute, 28 U.S.C. § 1443, Congress declared that

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.

Unfortunately, later courts severely restricted the applicability of this statute, see e.g., Johnson v. Mississippi, 421 U.S. 213, 219 (1975); Georgia v. Rachel, 384 U.S. 780, 803-04 (1966), leading to such perverse consequences as the “Williamson County trap,” currently being considered by the Supreme Court in the San Remo case. But that’s another issue. The important thing is that Congress has the authority to grant federal courts jurisdiction over cases alleging a violation of federal constitutional rights. It did something similar in 1948, by passing 28 U.S.C. § 2281, creating a system of three-judge district courts to hear complaints alleging racial discrimination under the Fourteenth Amendment.

Mike Cernovich says this argument is wrong because “where Congress orders a federal court to re-open a state court’s final judgment on a family law issue,” it has violated the principles of federalism. That is not necessarily true, however. If the state court’s final judgment on a family law issue constitutes a violation of the Fourteenth Amendment, the federal government has the authority to intercede. Indeed, in Palmore v. Sidoti, 466 U.S. 429 (1984), that is pretty much what happened. There, a Florida Court heard a custody dispute and held that custody of a white girl should be awarded to the white father instead of the white mother who was then living with a black man, because it was not in the child’s best interests to be raised by a mix-race couple. The Supreme Court held that it violated the Fourteenth Amendment for the Florida Court to make that determination—in other words, a state’s authority over family law does not permit it to violate federal constitutional standards.

None of this means that Terri Schiavo’s federal rights have been violated. They have not, and the federal district judge and the Eleventh Circuit made the right decision in this case. But I don’t think we can say that Public Law 109-3 violates federalism—or for that matter, separation of powers, since the law simply grants jurisdiction, and does not demand a substantive outcome. Congress has the authority to control the jurisdiction of the federal courts, and so long as it does not engage in judicial determinations, it does not violate the separation of powers. We may bemoan Congress’ attempt to pressure the judiciary, and yes, “we all know” what some people who voted for this bill intended. But as lawyers, we are supposed to glean “we all know” from the actual words of the statute, not from the subjective intentions of some who voted for it. In this case, the actual words of the statute do say that (as Mr. Cernovich puts it) “Congress does not care about the substantive outcome of the Schiavo case, but only about the procedures used.” So long as they voted on language that says that, we cannot speculate—even when the fact is obvious—as to what Congress really meant. So far, all they meant was a procedural matter, not a substantive matter. That may be clever or tricky or sleazy, but under the rules, they’re allowed to do that.

If there are other arguments that this law is unconstitutional, I have not heard them, and would like to, but I think it passes muster on Tenth Amendment and separation of powers grounds.

Update: More here.

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