Thursday, March 24, 2005
According to Hugh Hewitt the judiciary has thwarted the will of the Congress by refusing to grant a stay in the Schiavo case.

And of course Hewitt starts this analysis by looking at the text of the bill itself, since that is the only document that can really demonstrate what the will of Congress was... Or wait. He writes an entire article based around the conclusion that the judiciary is failing to follow Congress' will, and never once mentions the text of the bill - not once?

What a joke. And a shame coming from a law professor (especially a conservative one).

So how does Mr. Hewitt come up with Congress' intent - legislative history perhaps? No. He just tells us what Congress intended based on what he wanted it to intend and some after the fact statements from one Congressman:
So Congress passed a statute that was intended to force a new trial on the merits of Terri's parents' concern that their daughter's wishes were not being honored. The president signed it. DeLay summarized the intent of Congress in his Sunday press conference: "We are confident this compromise will restore nutrition and hydration to Mrs. Schiavo as long as that appeal endures. . . . Obviously, the judge will have to put the feeding tube back in or she could die before the case is heard."
Well that is all well and good - DeLay makes an assumption about what the judges will have to do to implement the bill. But as we all know - one Congressman cannot speak for Congress, so let's look at the bill's language itself (I know, shocking that we would do that....):
Section 1: 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.
Section 2: Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
Section 3: After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.
There are some other provisions that are not relevant. Section 3 discusses injunctive relief, but it is focused only on final injunctive relief. The plain language does not provide for preliminary injunctive relief or a TRO - in only provides for injunctive relief after a hearing on the merits. Such a hearing will be mooted now most likely when Terri passes away. And this provision does not mandate preliminary relief in order to have that full merits hearing (nothing in the bill does).

Section 1 simply provides jurisdiction for a suit, it does not suggest anything about the merits or actions the court should take. So we are left with Section 2.

The pertinent language in Section 2 simply states:
In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
There is nothing in that language that mandates or requires a preliminary stay or a TRO. All it does is instruct the court as to what type of review to conduct during the merits hearing (de novo) and not to preclude review based on certain doctrines - abstention or failure to exhaust state court remedies. So the bill states nothing about mandating a preliminary stay or a TRO. So the court is left to resort to the standard legal analysis of those issues - as Congress fully knew it would have to do absent specific instructions to the contrary. If Congress had wanted to mandate a stay or a TRO, it knew how to do it - and it chose not to (or more likely, the drafters of this bill just didn't take the time to understand the law (others might question their intelligence), but it is not up to judges to guess at what Congress really wanted to say in the bill - it has to follow the plain language so long as it is unambiguous).

And it is quite clear that Congress did not intend an automatic stay in the bill as it was passed. As the Eleventh Circuit stated:
There is no provision in Pub. L. No. 109-3 addressing whether or under what conditions the district court should grant temporary or preliminary relief in this case. There is no more reason in the text of the Act to read in any special rule about temporary or preliminary relief than there would be to read in a special rule about deciding the case before trial on Fed.R.Civ.P. 12(b)(6) [*7] or summary judgment grounds. Not only that, but Congress considered and specifically rejected provisions that would have mandated, or permitted with favorable implications, the grant of the pretrial stay. There is this enlightening exchange in the legislative history concerning the Senate bill that was enacted:
Mr. LEVIN. Mr. President, I rise to seek clarification from the majority leader about one aspect of this bill, the issue of whether Congress has mandated that a Federal court issue a stay pending determination of the case.

Mr. FRIST. I would be pleased to help clarify this issue.

Mr. LEVIN. Section 5 of the original version of the Martinez bill conferred jurisdiction on a Federal court to hear a case like this, and then stated that the Federal court "shall" issue a stay of State court proceedings pending determination of the Federal case. I was opposed to that provision because I believe Congress should not mandate that a Federal judge issue a stay. Under longstanding law and practice, the decision to issue a stay is a matter of discretion for the Federal judge based on the facts of the case. The majority leader and the other bill sponsors accepted my suggestion that the word "shall" in section 5 be changed to "may."

The version of the bill we are now considering strikes section 5 altogether. Although nothing in the text of the new bill mandates a stay, the omission of this section, which in the earlier Senate-passed bill made a stay permissive, might be read to mean that Congress intends to mandate a stay. I believe that reading is incorrect. The absence of any state [sic] provision in the new bill simply means that Congress relies on current law. Under current law, a judge may decide whether or not a stay is appropriate.

Does the majority leader share my understanding of the bill?

Mr. FRIST. I share the understanding of the Senator from Michigan, as does the junior Senator from Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislative history mandates a stay. I would assume, however, the Federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its determination. Nevertheless, this bill does not change current law under which a stay is discretionary.

Mr. LEVIN. In light of that assurance, I do not object to the unanimous consent agreement under which the bill will be considered by the Senate. I do not make the same assumption as the majority leader makes about what a Federal court will do. Because the discretion of the Federal court is left unrestricted in this bill, I will not exercise my right to block its consideration.
151 Cong. Rec. S3099-100 (daily ed. Mar. 20, 2005) (colloquy between Sens. Levin & Frist).

This enlightening exchange does not contradict the plain meaning of Pub. L. No. 109-3, but instead reinforces it. Plainly, Congress knew how to change the law to favor these plaintiffs to the extent that it collectively wished to do so. That is what the changes it did make, including those to standing law, the Rooker-Feldman doctrine, and abstention, demonstrate. When Congress explicitly modifies some pre-existing rules of law applicable to a subject but says nothing about other rules of law, the only reasonable reading is that Congress meant no change in the rules it did not mention. The dissent characterizes the language of the Act as clear. It is on this point: the language of the Act clearly does not purport to change the law concerning issuance of temporary or preliminary relief. n5

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n5 Contrary to the dissent's assertion, we do not believe that the text of the Act limits or eliminates a court's power to grant temporary or preliminary relief. Exactly the contrary. Our position is that the Act, which does not mention that subject, and which was amended to remove a provision that would have changed the law, does not affect it at all. The district court applied settled law and so do we.
Ironically, if the courts would have read the bill to require a stay it would have been an act of judicial activism. What the courts did was to apply the law properly and objectively. There was no judicial activism here. And conservatives who suggest otherwise are just plain wrong and hypocritical and should be ashamed of themselves.

In an attempt to rationalize why the courts should have engaged in judicial activism, Hewitt attempts to compare the Schiavo bill to the Endangered Species Act (ESA) 16 USC sec. 1531, et seq. But even the case Hewitt cites requires a showing of merit: the petitioner must show "a reasonable likelihood that the defendant will commit a future violation of the Act." Loggerhead Turtle v. County Council, 92 F. Supp. 2d 1296, 1301-02 (M.D. Fla. 2000). And Loggerhead actually denied the preliminary injunction - so obviously its standard wasn't that broad. Id. at 1309.

It is also noteworthy that Loggerhead was distinguished by another case (on a standing issue) that pointed out that Loggerhead went outside the plain language of the statute (i.e., engaged in activism). See Cetacean Cmty v. President of the United States, 249 F. Supp. 2d 1206, 1210 (Dist. Hawaii 2003) (stating that Loggerhead was not convincing authority on the standing issue, after noting that "the plain language of [the ESA] does not authorize a whale, dolphin, or porpoise to sue under the ESA." Loggerhead had granted standing to a couple varieties of turtles...)

If Congress' true intent was as Hugh Hewitt claims, they should hire better lawyers to draft the next bill. Because the judges here got it correct, and it wasn't even a close call frankly. To see conservatives upset that the judiciary didn't engage in judicial activism is sad indeed. Or actually, as many of us have now learned - Republicans are no longer "conservatives," they are simply religious activists who have sold out their conservative values.

Hewitt also states this:
Tricked-up public opinion polls on the Schiavo case have allowed some commentators to pretend that Congress stumbled politically when it passed the law benefiting Terri's parents. Absurd. It was the right thing to do, and the focus on the facts of the case daily adds to the number of people who know that to be true.
Sure, tricked-up polls... And if Republicans' share Hewitt's view that the right thing to do is for Congress to create a specific law to allow a specific person's parents to trump that adult person's own wishes - then Republicans are in much more trouble than even I think they are. And anyone with any intelligence knows the "facts" are much more favorable to Michael Schiavo's argument now than they are for Terri's parents -- see here and here for example. Once you start reading reliable sources (court opinions based on the actual record, for example) you start to see just how much misinformation and, frankly, out-and-out lies are being spread by Terri's parents and the groups advocating for them. They are the ones who don't care about the true facts - they just want a result.

Hewitt closes with this:
Whenever the collective attention of the country turns to one drama, all sorts of unexpected revelations occur.
I agree with that point, but I obviously disagree about what those revelations are in this case. My revelation - Republicans aren't really conservative anymore - they are just religious ideologues.
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