Posted on 3/25/2005, 4:15:30 AM by CyberAnt
According to a few Members of the US House of Representatives, I was incorrect in my assertion on Wednesday that the bill signed into law early Monday morning (Public Law 109-3) simply gave Terri Schiavo's parents access to the Federal Courts and did not require the reinsertion of her feeding tube.
The "few Members" of the House of Reps include Speaker Dennis Hastert, Majority Leader Tom DeLay, Majority Whip Roy Blount, and Judiciary Committee chairman James Sensenbrenner as well as Florida Congressman Dave Weldon (who is an M.D.) submitted a "friend of the court" brief asserting the legislative intent of the law.
Their brief stated that Public Law 109-3, requires US District Court Judge James Whittemore to have Mrs. Schiavo's feeding tube reinserted pending the outcome of the federal court reviews.
The section of the brief in question reads, "Clearly, the Middle District of Florida is required by Public Law 109-3 to keep Theresa Marie Schiavo alive until such time as a de novo review of her claims occur."
According to the Findlaw.com legal dictionary, "de novo" means, "over again; as if for the first time."
When the Supreme Court, in a 33-word order, ruled unanimously that Mrs. Schiavo's feeding tube should not be reinserted, it rendered PL 109-3 moot, whatever the intention of the Congress was and whatever its Constitutionality.
But let's track back over this anyway.
Either PL 109-3 is Unconstitutional, meaning the Congress, under the doctrine of separation of powers, cannot require a Federal judge to issue a specific order in a specific case; OR Judge Whittemore chose to ignore a Constitutionally acceptable law, which might well qualify as bad behavior on his part.
Let's go to the rule book:
Article I, section 2 of the U.S. Constitution states that "The House of Representatives … shall have the sole Power of Impeachment."
Article I, section 3 states "The Senate shall have the sole Power to try all Impeachments."
Article III, section 1 states that Federal judges "shall hold their Offices during good Behavior," which is the basis of the lifetime appointment for Federal judges.
There is a concept in US Constitutional law of "Judicial Review" which has been in force since 1803 when Chief Justice John Marshall first asserted it in Marbury v Madison.
Judicial Review grants Federal courts the right - and responsibility - to (according to findlaw.com) "strike down an act of Congress as inconsistent with the Constitution."
My excellent memory of Dr. Robert Hill's Con Law class at Marietta College does not include in that doctrine, the Judiciary's authority to simply ignore a law which is otherwise Constitutional.
So,
If PL 109-3 is Constitutional; and
If the House was serious about the passage of PL 109-3; and
If the intent of the legislation was to have Mrs. Schiavo's feeding tube reinserted; and
If U.S. District Judge Whittemore willfully ignored PL 109-3; and
If a Federal judge can only continue to serve "during good behavior;" and
If defying a lawful statute is bad behavior; and
If the House of Representatives has "the sole power of impeachment;" then,
The House Judiciary Committee should immediately being impeachment proceedings against Judge Whittemore.
Whew!
I do not expect that the House will impeach Judge Whittemore and if they did, I would not expect that the US Senate would convict.
Articles of Impeachment have only been adopted by the House 62 times since 1789. Of the cases which went to a Senate trial only seven resulted in convictions. All seven, interestingly, were Federal judges.
The appalling case of Terri Schiavo and her family is coming to an end. It may not have lasting significance from a political standpoint, but its impact on the legislative/judicial relationship may echo for years to come.
On the "Secret Decoder Ring" page today: The text of the Supreme Court's order; the text of the House Leadership's friend of the court brief; a eye-wiper of a Mullfoto, and an extremely clever Catchy Caption of the Day.
-- END --
Copyright ©2005 Richard A. Galen
To get to the "Secret Decoder Ring" page - just click on the link at the top of the article.
Thanks. I needed the secret decoder ring. You're the greatest Cyber Ant. :)
It's also great stuff. Thanks for the post.
Please stop expecting Jeb to break the law just because we are all so frustrated with the courts.
Bush made the mistake of asking for legal advise before acting. Same mistake as the Catholic bishops made. Lawyers will always lead you into a legal trap. They know nothing except process.
I agree...Bush fell into the lawyers trap.
Nothing Bush can do mow, the lawyers are slick.
MS looks like he belongs to the Mafia...what a crep.
This power in the judicial, will enable them to mould the government, into any shape they please. The manner in which this may be effected we will hereafter examine.
BRUTUS
Answer: "Your Honor"
Maybe there should be some major lawsuits against the state of Florida for not allowing CPS workers to fulfill their legal responsibility! For violation of the Florida constitution! And it would have to moved to another state!!!
Probably the probate, nursing home, malpractice Mafia, and he's a prison nurse, to boot.
LOL!!!!
Good article, good logic, even I could follow that without a Venn diagram..
Times haven't changed much after all.
May not be possible under Florida constitution, but why not issue an executive order based on his constitutional role, take custody and then battle the courts to keep her.
Actually Schiavo is the jail nurse for the Pinellas Park PD, the guys guarding his wife. Oh and he got the job because the last nurse was killed by her husband, stabbed to death, when Greer ruled she didn't have enough evidence for a restraining order.
Ah Dred Scott. Next comes.........John Brown?
That said, I think we can now say with some clarity that the US is no longer a republic.
Ping
Douglas got it bass akwards. The Constitution empowers Congres to make law and puts the duty of the courts to follow the letter of statutes so far as that is knowable.
We don't need an EO - we have PL 109-3.
Didn't you even bother reading the article ..??
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