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Congress and the Schiavo Case

Mike Allen
Washington Post Staff Writer
Tuesday, March 22, 2005; 11:00 AM

Congress voted early Monday morning to give jurisdiction over the fate of Terri Schiavo to federal courts. Voting 203 to 58 at 12:42 a.m., the House joined the Senate in approving the measure, which was signed by President Bush at 1:11 a.m.

Washington Post staff writer Mike Allen will be online Tuesday, March 22 at 11 a.m. ET to discuss Congress' decision.


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Mike Allen: Good morning. Thank you for taking the time to join this chat on an issue that now could have many political ramifications in addition to the medical, legal and ethical issues that it has raised over the years. I'm always amazed at the quality and volume of the questions in these chats. I peeked in at 10 a.m. EST, an hour before game time, and there were already 22 questions, all of them substantive. We get more questions than we can answer so we try to pick a variety. Let's go!

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Rochester, N.Y.: Can it possibly be constitutional for Congress to direct the federal courts to consider a case de novo that has already been the subject of, I believe, 34 state court proceedings in front of 15 different judges? If the federal courts reach the same conclusion as the Florida courts, what next? The International Court at the Hague?

Mike Allen: During the debate from 9 p.m. to midnight on Sunday night, this was a theme of the Democratic responses. Rep. Barney Frank (D-Mass.), one of the most vociferous opponents, said Congress was setting itself up as a "super Supreme Court." One of the unknowns for me in this debate, is whether this is a truly unique case. Congress is about to find out. Some members worry that they will be buried with requests from people who think Congress has set itself up as a medical review board. Rep. Mel Watt (D-N.C.), chairman of the Congressional Black Caucus, told me yesterday that the debate was helpful in calling attention to the importance of living wills, but he worries that it will provoke a flood of petitions. "There are a lot of people out there who would like to have a special bill solely for their own benefit," Watt said.

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Oxford, Miss.: What is the earliest reasonable time in which the 11th Circuit can rule on the appeal from the district court's decision?

Mike Allen: I think immediately but I'm checking while this chat is in progress. In the meantime, one byproduct of these cases is that journalists and news consumers learn a lot more about government and the courts. When I came to Capitol Hill in January, the suspension calendar was still something you got for talking in geometry. But that is the parliamentary approach that allowed the House to pass the bill so quickly. In the meantime, I'm putting up some great info that just moved about the 11th Circuit.

By The Associated Press

A look at the 11th U.S. Circuit Court of Appeals, where the Terri Schiavo case is being appealed.

LOCATION: Atlanta; has jurisdiction over federal cases originating in Alabama, Florida and Georgia.

JUDGES: There are 12 active judges and six senior judges on the 11th Circuit. Three-judge panels are randomly drawn to consider cases. Senior judges do not regularly hear cases.

AFFILIATION: Seven of the court's active judges were appointed by Republicans, five by Democrats. Presidents Clinton and George H.W. Bush each appointed four of the active judges.

CHIEF JUDGE: J.L. Edmondson; appointed to court in 1986 by President Reagan. Became chief judge in 2002.

REPUTATION: The court, in terms of its decision-making reputation, is considered moderate to conservative, according to former U.S. Attorney Kent Alexander, who has handled cases before it in the past.

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Anadarko, Okla.: I'm an 82 year old retired lawyer who handled mostly family law and traffic matters, but if my aging memory serves me correctly, it is unconstitutional for Congress to enact this kind of law on behalf of a single individual. Having done this, what's to stop them from doing so with increasing frequency on behalf of other individuals, in any of a wide range of situations? Most unfortunate, in my view, for whatever it's worth.

Mike Allen: You're probably thinking of a "bill of attainder," prohibited under the Constitution, which singles out specific individuals for punishment without a trial. Congress can enact private bills to help people, usually having to do with prisoners or other convicts, but this Republican leadership in particular does not like them and tries to avoid them. At a news conference I attended late Saturday afternoon in the House Radio-TV gallery, House Majority Leader Tom DeLay (R-Tex.), who pushed his members to act on behalf of Schiavo's parents was asked if this was a private bill, which Congress considers at only certain times. Here was his answer: "This is not a private bill. This is a compromise that has been struck with the leadership of Chairman Sensenbrenner in the House and those in the Senate with whom he has been working on this. And so this is legislation which we are hoping to pass through both houses and get to the president's desk."

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Tacoma, Wash.: Do you think that COngressional Republicans misread or misjudged public opinion when they decided to get involved in the this case? It seems to me that they were banking on widespread public support for the "sanctity of life." But... the public seems to view this issue very differently.

Mike Allen: You're right that there are numerous polls showing people think that Congress should not have acted, and that they would not have made a similar choice for their own loved ones. Republicans are hanging their hats on two things. 1) The people who cared most intensely about the issue before Congress acted, including Christian conservative activists, favored intervention. 2) Republicans tell me that much of the opposition is based on the erroneous idea that Ms. Schiavo is being kept alive by extraordinary means, as opposed to just nutrition and hydration. (What you are I would call food and water). One of the House's leading conservatives, Rep. Paul Ryan (R-Wis.), who rushed back to Washington instead of grilling pork tenderloin for his three children Sunday night, told me he went on three radio stations yesterday to discuss his vote for the measure. The listeners and hosts were skeptical, even though he describes his district as heavily Catholic and heavily polite. "The less people know about the issue, the more opposed they are to what we did, and the more they understand, the more likely they are to agree with us," Ryan said. "I got people saying, ‘Why are you sticking your nose in this family's business?' But then you ask them a few questions, and you realize they think they are all these machines keeping her alive, and it's just a matter of flipping a switch."

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Washington, D.C.: Hi Mike,
How is covering the Hill different from covering the White House?

Mike Allen: I suspect the scamp sending this question is no stranger. I switched to Congress in January after covering President Bush's first term. In Congress, the political machinery is more exposed. At the White House, it is deliberately concealed.

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Oxford, Miss.: What is the earliest reasonable time in which the 11th Circuit can rule on the appeal from the district court's decision?

Mike Allen: Real-time reporting: Burke J. Balch, director of the Robert Powell Center for Medical Ethics at the National Right to Life Committee, which has been consulting with lawyers in the case, tells me the earliest feasible time is a couple of hours after the judges actually get the briefs -- the legal papers from both sides -- which apparently has not occurred. The judges have to read through them, consult among themselves. It could occur this afternoon or this evening. "The longer they wait, the scarier it is for those of us who want Terri to be fed again," Balch said.

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Liverpool, U.K.: From my understanding of U.S. political history, the Republicans have always been champions of "states' rights". However, in this case, they have sided with the use of federal law. How have they decided to explain away this contradiction, and have the Democrats or the media highlighted this aspect of the case?

Mike Allen: Thank you for the shout-out from across the pond. This is the theme of numerous questions I have received. One of the few light moments in this drama on Capitol Hill was when Leader DeLay was asked just this question, and he whipped a copy of the Constitution out of the right breast pocket of his dark suit, and said he found it interesting that suddenly the media was the arbiter of what the conservative position was. "The United States Constitution protects the life of human beings from being taken by other human beings needlessly," Mr. DeLay said.

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Alexandria, Va.: Mr. Allen,
Is there any additional information as to the author(s) of the Republican's memo outlining the political advatages they can reap from this situation?
Thank You

Mike Allen: That's a reference to the follwing, which was first reported by Linda Douglass of ABC News and later by The Post: "In a memo distributed only to Republican senators, the Schiavo case was characterized as 'a great political issue' that could pay dividends with Christian conservatives, whose support is essential in midterm elections such as those coming up in 2006." The memo is unsigned. Because of the conditions under which it was provided to us, we frustratingly cannot tell our readers all that we know about its provenance. But I would not have put it in an article if I were not certain of its authenticity and relevance -- i.e., senators had it on the floor.

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Lincoln Park, Washington, D.C.: Has President Bush changed his views regarding right to die? Didn't he sign legislation in Texas that would have allowed Mr. Schiavo to request the removal of the feeding tube?

Mike Allen: Ha! This is the hottest story in the blogosphere. I asked the White House about this on Sunday after liberals sent me a bunch of e-mails about it. Yes, President Bush signed a bill in 1999 when he was Texas governor that is basically, according to Democrats, the opposite of the Schiavo bill: It allows health-care providers to discontinue life-sustaining treatment against the wishes of the patient's family if doctors determine the care is nonbeneficial. The White House said the Texas law included new protections for patients, including giving families 10 days to arrange for a transfer to another facility. The President-then-Governor had vetoed a bill in 1997 that did not include such protections. The National Right to Life Committee was involved in negotiating the compromise.

Here's an exachange with White House Press Secretary Scott McClellan yesterday during his gaggle aboard Air Force One en route to Tucson:

"Q Scott, you may remember this from your Texas days. A member of Congress in Florida, Deborah Wasserman Schultz, got on the floor yesterday and said that the President, when he was Texas Governor, signed a piece of legislation into law that, she said, would allow -- when there's a dispute, would allow a feeding tube to be removed and that -- she was a little bit murky on exactly what the law was, but, essentially, she was saying that the President signed something into law that's contradictory to what he is doing now."

MR. MCCLELLAN: "That's absolutely incorrect. The legislation he signed is consistent with his views. You know, this is a complex case and I don't think such uninformed accusations offer any constructive ways to address this matter. The legislation that he signed into law actually provided new protections for patients. He had previously vetoed legislation in 1997, when he was Governor, which essentially would have sanctioned current law in Texas that allowed hospitals to stop providing life-sustaining treatment -- because under Texas law, prior to the passage of the '99 legislation that he signed, there were no protections. And so this legislation was supported by many; it enjoyed strong bipartisan support; concerned citizens, various groups came together to support this legislation and put in place new protections for patients. The legislation was there to help ensure that actions were being taken that were in accordance with the wishes of the patient or the patient's family. And let me give you an example. Prior to that legislation being passed I think there was a 72 hour period where if the hospital notified a patient -- or the family that represented the patient that they were going to deny life-sustaining treatment, then they had just that 72 hour period to find a place to transfer the patient, that would provide the treatment. This legislation, some of the new protections it put in place were --included, the ethics committee review by the hospital, in working with the families as well, making -- you know, to discuss those decisions, determinations. And it also provided a 10-day period, so they had 10-day notice to be able to transfer the patient to another health care provider. And it also authorized court proceedings to extend that 10-day period in order to extend that transfer, if necessary. So it's just an uninformed accusation."

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New York, N.Y.: According to the Washington Post, only three senators were present when the bill shunting Theresa Schiavo's case to a federal court was passed. (The New York Times says only a few senators were present). This was apparently done under a "unanimous consent" motion. How does this work?

Mike Allen: The Senators present were Senator Frist, Sen. John Warner and Sen. Mel Martinez in the chair. No Democrat was present to object. Democrats told us it was clear the bill was going to pass and so there was no point in objecting. So there also was no Democrat present to call for a quorum.

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Lexington, Va.: Thanks for the chat. While this is not an exact analogy, several years ago Congress passed a law to free Dr. Elizabeth Morgan from jail, where she had spent several years after a finding of contempt of court. I believe Rep. Frank Wolf was the leading sponsor. The law was eventually declared unconstitutional. Shouldn't that also be the case here, where Congress is once again trying to set aside a court ruling with which it disagrees with regard to a particular plaintiff?

Mike Allen: I can't ignore a question from Lexington, jewel of the Shenandoah Valley and home of my alma mater, Washington and Lee University (and of course Virginia Military Institute). You have a great membory because a few Republicans who were reluctant to vote for this (and when you caught them in the hall, there were plenty of them, even though only five voted against) drew the Elizabeth Morgan analogy. Here is how Maureen Dow, then a White House correspondent, reported the bill-signign: "President [George H.W.] Bush today signed into law a bill intended to free Dr. Elizabeth Morgan, a mother who has been in jail more than two years because of a child custody dispute. The bill, which passed the House on Wednesday and the Senate on Thursday, limits to 12 months the time that a person can be jailed on civil contempt charges in the District of Columbia. Though the bill does not specifically mention Dr. Morgan, its sponsors say it was tailored to free her from the Washington jail where she has been held for defying a court order to let her former husband spend time with their young daughter, whose whereabouts Dr. Morgan has concealed."

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Atlanta, Ga.: HI Mike -- from a fellow W and L grad ('86) -- it appears that since the 1990s, the GOP has been losing ground in some of the northern suburbs such as in the Chicago and Philadelphia areas, explaining why, for instance, Democrats have won the traditional battleground states of Illinois and Pennsylvania in the last four presidential elections. The presumption is that non-southern suburban areas tend to be more moderate on social issues than the national GOP. Do you think Congress' action in the Schiavo case is going to cause further estrangement from the GOP in those areas?

Mike Allen: A classmate who is -- now as then -- smarter than me. (Than I?)
I will point out that President Bush won, electorally and popularly -- with very few of the concessions to moderates than many people, including some on his own staff, thought were necessary.

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Mike Allen: OK. I'm going to do was work now. That's a lie. I'm going to lunch. But it is with another reporter and a Senate official. Does that count as work? You be the judge. Have a great week, and remember this is the third day of spring.

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