Serenity now...or as the news calls it, "More on the Schiavo story"

Congress a week ago subpoenaed Terri Schiavo, a severely brain-damaged woman who has been the center of a struggle between her husband and her parents over whether her feeding tube should be removed. The subpoena is an effort to forestall the removal of her feeding tube, was removed today after litigation in the Florida state courts was exhausted.

This reason for the subpoena is understandable, but it will be the ultimate embarrassment for Ms. Schiavo if she actually appears before Congress in her vegetative state, even if the congressmen travel to her hospice as the lawyer for the House committee suggested. Whatever her wishes were regarding whether she would want the feeding tube to be removed, I am sure that one of the last things she would have wanted to do was testify before Congress in this manner. But of course none of this is really for her to testify, but only to buy more time for her before her feeding tube was removed.

A word to non-lawyers (using some knwoledge from my financial advising days): 99% of cases came about because people were stupid and didn't plan ahead; don't make the same mistake Ms. Schiavo did in not stipulating in extremely clear terms ahead of time what she would have wanted. Thinking ahead and trying to plan for the unexpected is a way to cut down dramatically on these hard cases.)

The whole thing is tragic, but it also further exposes the hypocrisy of partisan politics. Republicans have long championed federalism, but when state politics doesn’t come out the way they want it to, they want the federal government to intervene. The Florida state courts weren’t deciding the Schiavo case the way conservatives wanted, so conservatives wanted to pass a bill in Congress that would provide for federal courts to hear this and hopefully decide the issue differently. Yale Law School professor Jack Balkin gets it exactly right when he says that conservatives would seek a federal ban on abortion were Roe v. Wade overturned; all this talk of states’ rights is bunk. And the same goes for some Democrats. Normally in favor of the federal government, they have suddenly become fans of federalism, wanting the states to decide gay marriage and the legality of medical marijuana, for example. This hypocrisy is to be expected, but that Ms. Schiavo should be caught up in this partisan politics is tragic.

And now Congress Monday passed a law providing for federal courts to hear the case of Terri Schiavo in the hopes that the federal courts will decide this issue differently than did the state courts and order reinsertion of her feeding tube. The law is remarkable in that it names Ms. Schiavo and grants authority to her parents to sue in a particular federal court in Florida. The legislators were also careful to say that this law did not affect other laws already on the books and effectively represented a one-shot deal.

Although I understand the purpose of the legislation, I worry that inordinate pressure will be placed on the federal judge slated to hear this case. Congress has not stated it in so many words, but is essentially asking him or her to decide the case in a particular way; were the judge to affirm the state courts, conservatives would be back to square one.

This is why I agree with House Minority Leader Nancy Pelosi that this law represents improper use of legislative authority. Because Congress is attempting to influence the outcome of this litigation, I think this law comes dangerously close to a violation, if not an outright violation, of the separation of powers that allocates legislative power to Congress and judicial power to the courts.

*wipes sweat off brow* That all said..arent we all sick to death of this case yet?