The Note: Life and Liberty

WASHINGTON, March 21 --


To paraphrase Tom DeLay (and state the obvious), the Terri Schiavo dilemma poses difficult legal challenges for those who want to preserve her life.

Despite some public opposition to Congress's action (see below) the Republican leadership seems to have succeeded in framing the discourse around a moral question: if Congress can do something to prevent a woman's death, shouldn't it?

Today, the center of gravity shifts to a federal courtroom in Tampa, where a judge (TBD at this writing) will begin a de novo review of the entire case.

Upon the 1:11 am ET signature of President Bush, Congress has given the federal courts (in this case, the middle district of Florida) jurisdiction to decide whether Schiavo's constitutional rights are being violated. With a Bush-vs.-Gore-like twist, the bill then asks the rest of the world to ignore the precedents set by whatever the judge decides.

He or she could order Ms. Schiavo's feeding tube to be re-connected; he or she could throw out the case immediately; he or she could ask the lawyers to prepare briefs.

There will be demonstrations today outside the Governor's mansion and the state legislature in Tallahassee, and we await possible word from Gov. Bush about the recent developments.

We will leave the legal hand wringing and interpretation to those more qualified, but as lay followers of the law, we have not yet read a slam-dunk argument for why congressional action here is necessary and appropriate above the appeals to the 8th Amendment's prohibition of cruel and unusual punishment, which is usually stated and left unelaborated.

We haven't seen any Republican argue why it's a sensible thing for Congress to get into the habit of picking and choosing jurisdiction for one specific case (rather than, say, for a class of cases, like tort reform) and at the same time, for Congress to pick a side in the dispute it seeks to transfer to the federal courts.

Nor has anyone conceded that making the Constitutional case for this -- first to the judge, then, probably, to the 11th Circuit Court of Appeals, then, maybe, to SCOTUS, is going to be easy.

But we're not sure that the basic federalism argument -- namely that Congress has no business even thinking about Terry Schiavo's life -- holds, because on issues like abortion and euthanasia, the Supreme Court has given the federal government a significant authority to shape legislation. (The Wall Street Journal's editorial saying Republicans are right here in part because Democrats usually are hypocrites about federalism -- well, that's plain weird.)

Simply saying that "Congress has no business here" does nothing to get those butterflies out of our collective stomach when we see the image of a smiling, very alive, woman in her hospital bed.

And saying that "politics are involved" or that Congress is "responding to its Christian base" ignores the fundamental precept of our democratic polity, wherein political considerations always affect policy decisions, and vice versa.

To be sure, the balance of power that many feel are aggrieved here is predicated on each branch of the government showing restraint and discipline and not allowing politics to intrude too much.

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