SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Wednesday, March 23, 2005

MASUGI COMMENTS ON SCHIAVO CASE. Like most everyone else, I've been a distant spectator to the case of Terri Schiavo. Today at The Remedy, The Claremont Institute's Ken Masugi discusses some of the federalism and separation of power concerns raised by conservative thinkers and legal scholars.

Some of the discussion centers around statutory interpretation and the legal standards for obtaining injunctive relief in a court of law. But I would surmise the federalism issues would be more profound. Honestly, I've not had the time to look into the law that was recently passed through Congress and signed by the President, which had given Terri another chance at extending her life through the federal courts.

These types of matters are most often handled by state courts. But the fact that something has traditionally been within the province of state courts does not present a constitutional barrier to federal pre-emption. I am certainly NOT a subscriber to "process federalism"--which says that federalism and the relationship between the federal government and the respective state governments (and the relationships AMONGST state governments) is merely left to the protection of the political process. However, given that Congressional power is plenary when it comes with the ambit of an enumerated power grant (or such a grant in conjunction with a related enforcement clause), one could probably find a constitutional justification for the law that Congress recently enacted. (Here I'm thinking through the Due Process Clause of the 14th Amendment, in conjunction with the 14th's Enforecement Clause.) Whether the enacting of a law is politically or prudentially appropriate is an important and related matter, but nonetheless different matter.

Again, I make all these observations without having read the statute involved in this case. That being said, my cursory observation of the situation leads me to wonder just where the Florida trial judge is coming from on this. I've been involved in some guardianship cases, and once upon a time thought that these sorts of matters were things I would routinely be taking up. It certainly occurs to me that there is a SIGNIFICANT conflict-of-interest issue going on. The husband has two children by another woman--his de facto new wife. There have been serious arguments raised about his unwillingness to see that Terri get treatment that could potentially improve her condition. But it looks like she will never even get that chance. Further, I am of the view that there is a distinction that can be made between the usage of feeding tubes and the usage of life support machines.

From here, I will just be watching things transpire. I don't have the up-to-the-minute report, but I highly doubt the U.S. Supremes will step in. We'll just have to wait and see what happens next...

(North Seattle--Green Lake, WA)

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