Centerfield

Since I live in Atlanta, I was tempted to stand outside the 11th Circuit courthouse with a big sign reading "Let Terri Go To Heaven".

Seems like the Christian thing to do.

Think I would have gotten on CNN?

But since Mr. Voice was giving his political analysis, I'll add that it looks the Democrats got caught completely off-guard by how fast this became a national issue, and it's probably a damn good thing for them that they did.

If the Dems in Congress raised a big stink to oppose the Republicans and fought for Schiavo's right to kill his wife, they'd have played right into the hands of Republicans who love losing on symbolic issues like this one.

Instead, this looks like a classic example of over-reaching by the party in power.

Also, Tom DeLay is awesome at wielding behind-the-scenes power, but in the front of the camera he becomes the ideal enemy for Democrats. See Gingrich, Newt, circa 1994.

I ripped the Republicans in a prior thread for the talking points memo about energizing the pro-life base and using this issue against Bill Nelson. I should note that there are now legitimate questions regarding the authenticity of that memo.

If a Democratic staffer planted the memo, it was a stupid, stupid thing to do. The Republicans were doing just fine making asses of themselves without any help.

I think these polls show the moderate middle speaking up for a change, and also shows the people's libertarian impulses.

Some have suggested the Democrats win by mostly keeping quiet and ducking down low so the pie just hits the GOP in the face.

I disagree to a point. This strategy makes sense for the short term, probably until Terry Schiavo's body expires, and she can rest in what precious little peace and dignity remain.

After that, there's an opportunity for the Democrats to begin an initiative to protect the rights of individual Americans to self-determination in cases of medical incapacity and in general, in end-of-life instances. And in doing so, they could do all Americans a service.

I did a little investigating into living wills (documents that declare your intent regarding what treatment you'd like if you become incapacitated). The rules vary by state, and lawyers are using this as an opportunity to cash in while helping out.

Why not come up with a law instituting a universal declaration form, something very simple that must be legally binding in all states as long as properly filled out according to simple rules. This form would allow you to designate a proxy decision-maker (or a council) to be the sole interpreter of your declaration of how you'd like to be treated under circumstances of medical incapacity. (which could be either "pull the plug if hope is low" or "keep me alive for as long as possible."

Forms similar to this exist in various incarnations in different states, usually consisting of a healthcare proxy designating your substitute decision maker, and a living will that describes your intent related to treatment.

I say, make one universal form, make it pretty simple, and make it legally binding by law so that lawyers can't suggest that you really need to pay them to draft a customized document that will stand up in court, and that'll be $3000 please.

I think the democrats could be big winners here by giving Americans an easy opportunity to be masters of their own fate and to reject the notion that someone else has the right to impose their own values upon such a decision. This document could be a great model for the idea of different Americans being free to passionately declare their beliefs, and yet also respect the beliefs of others who think differently. There comes a time when Americans know they should just mind their own business, and this is definitely such a case.

I agree with bk. What should come out of this entire mess is a new standard that will be legally binding in any of the fifty states and other commonwealths and territories of the United States. It should be solid and unavailable to challenges by anyone other than the appointed advocate. I for one have now set all of the rules straight in documentation that has not only been notarized but also signed by all of my immediate family members acknowledging that they will not intervene or contest any actions that my chosen advocate will deem necessary and appropriate reagrding the delivery medical treatment in the event I should suffer such a catastrophic accident or illness.

The Supremes refuse to intervene. Back to state court.

The problem (and I don't practice estate law or health care law, so there's no conflict of interest) is that there's no constitutional fulcrum for Congress to lever itself into advance directive law.

The Democrats should draft legislation for a 'universal' living will (my take on the earlier posts)? That would play into the Republican hands, big time.

I don't know about the memo’s authenticity. At this point, the actual document is moot. The behavior thrown all over the TV screens says much louder than the memo could have danced around. The poll numbers aren’t based on the memo contents – it’s on the behavior of the politicians.

I can't see how this would play into the GOPs hands if the nature of the declaration regarding how you'd like to be treated were left as a blank section for each person to fill in based on their beliefs.

JJD, it seems to me that there's a t least the potential for such cases to involve interstate commerce, since it's not guaranteed that all conceivably interested parties hail from the same state. If there is a will to have such a nationwide solution, and the polls suggest there is, it seems that a way might be found...

Brian,

Sorry. Don't buy it. Neither life nor health is property for purpose creating transfer of control through a medical directive commercial. Yes, there's money changing hands since someone has to pay for the medical bills, but what you suggest you want to regulate is the method of creating an agent for the purposes of making medical decisions. It's not a federal issue.

The rebuttal that, "where there's a popular will, there will be a legal way," is disconcerting. What we should all take away from this debate, and the federal courts' treatment of it, is that we don't create federal jurisdiction (legislative or judicial) when there's no underlying constitutional foundation.

You want simple, standardized forms? Either a) pressure your state legislators or b) amend the Constitution of the United States. The forms don't have to be uniform from state to state; these types of appointments are always (there may be an exception I'm not aware of) governed by the law of the state in which the person executing the appointment is domiciled at the time of the execution. So if Bob is domiciled in Va. and appoints his sister who lives in Md. to be his agent, the applicable law is Va. law. If Bob later moves to Md., the applicable law is Va. law (unless Bob re-executes a new agreement). Most people should be able to obtain relevant and correct forms for them in the state wherein they're domiciled.

"It's not a federal issue."

Amen to that. Let's not make it one.

"....we don't create federal jurisdiction (legislative or judicial) when there's no underlying constitutional foundation."

Double amen to that.

What Oberon said.

If the Dems raise a stink opposing, they look like they're actively rooting for the death of an innocent. So just be quiet, and let the GOP keep pissing everyone off. Free win, no cost.

The GOP has only one real upside here, and that's with the more rabid pro-lifers. They firm up that base nicely, for what good it will do them. Everyone else, including 2 out 3 evangelicals and most of the fiscal conservative/state's rights factions, is peeved and annoyed at the obvious pandering and grandstanding.

And the GOP had to know that this was going to end this way, that the courts would not play along, so I can't figure it as anything but a naked rabble-rousing of the more rabid pro-life wing. Which (longer-term speculation) means they'r firming up that part of the base for other political fights. SS, anyone?

and ECHO tim

I don't know about the memo thing..but there is a tape of Tom DeLay speaking to the Family Research Council (think it's from earlier this week or last week).

DeLay said that Schiavo is a gift from God for the prolife movement because it helps bring that cause more exposure.

Congressman Trent Franks from AZ characterized the court decisions on the case as judicial activism. Aren't the courts applying the law as it now stands, and wouldn't doing otherwise be activism? The husband is the legal guardian, right? Franks further stated that the courts were pushing the "culture of death," and that the Republicans in Congress, as well as the President, who intervened were acting to protect a citizen's rights. What about the citizen's right to decline treatment? Wasn't the courts decision based on evidence that Terri Schaivo wouldn't have wanted such treatment? Aren't the courts protecting her rights? The Republican Party has traditionally embraced the "culture of life" according to Franks. Is that what Terri Schaivo now has? Is that what they would call life? Does the "culture of life" mean that one should be forced to exist in such a state? If Terri Schaivo had a living will, this would not be an issue. So, is this a matter of principal involving the moral depravity of failing to provide any means necessary to keep bodies in the state of being technically alive? Or is it about a piece of paper (or lack thereof)?

How 'bout we all chip in to send DeLay a Pander Bear Award?

That added "exposure" for the Randall Terry faction is the last thing the GOP needs. I guess they're hoping we have short memories. All it would take to cost the GOP seats in '06 is for the fiscal cons and libertarian wing to stay home.

"....we don't create federal jurisdiction (legislative or judicial) when there's no underlying constitutional foundation."

Don't you mean "we shouldn't..." Surely you're not saying congress has never done this?

I'm fine with a constitutional amendment if that's what it takes. The amount of nationwide concern we've seen makes it pretty obvious that this is an issue of national concern, and would be better solved at a national level than addressed capriciously via a hodge-podge of varying states rules.

Of course, the variety inherent in different states' rules is a HUGE moneymaker for the legal profession, so count on the lawyers to think the feds should stay out of it. Can't have them slaying a cash cow.

I want my liberty over my destiny affirmed, and I want the FEDS to affirm it. Because if they don't, then by their recent actions they are telling me that if only my state affirms this liberty, they might intervene and take it away if a powerful enough group of their voters is feeling paternal or nannyish that day. Unless the feds settle this, the threat of them intervening later on to UN-settle what my state has tried to settle will loom perpetually.

Somewhat relevant federal law:

Patient Self-Determination Act of 1990

Isn't this whole matter about whether the husband actually had the conversation with his wife that she would not want to live in that condition? He is the legal guardian and the courts have ruled that the wishes she expressed to him were legitimate. Right to life or death isn't the issue, the right to deny intrusive medical procedures is the issue. This whole situation is about the most terrible thing I can imagine. But DeLay's actions are inexcusable, the courts have done the right thing, IMO, upholding the law. This fight within the Schindler/Schiavo family has been going on for years and it seems to me they have recieved due process of law. To me both sides seem like decent people, but now their fight has become a political fiasco. I don't like the way this has turned out.

Tully,

The Patient Self-Determination Act was in the omnibus budget bill in 1990, P.L. No. 101-508, and is codified in Chapter 7 of Title 42 of the United States Code (Social Security). It is, in fact, a regulation of health care facilities and providers who receive Social Security, Medicare, or Medicaid payments. The receipt of the federal money, and the regulation of the facility (usually commercial entities), provide the federal lever.

Brian,

I said, "we don't create federal jurisdiction . . . when there's no underlying constitutional foundation," and you suggest I mean "we shouldn't create federal jurisdiction." I stand by my original statement. Though Congress may attempt to create federal jurisdiction, legislative or judicial, it doesn't do so when it lacks constitutional authority. Congressional statutes without a constitutional basis are void ab initio. So no, Congress has never created federal jurisdiction without a constitutional basis--however hard it may have tried or however convicted it may be in its own (collective) mind that it has done.

As I said in my original comment, I don't practice in any of the relevant areas of law. I have no interest in state variations in this area of law. In fact, since my work is almost exclusively in federal law, I don't have a dog in this fight at all--except for ensuring someone doesn't try to stretch federal constitutional authority to cover an area of law it will not reach.

Why I only said "somewhat" relevant, JD.

Here's an intersting religious perspective on the Shiavo case:
http://www.stltoday.com/stltoday/news/stories.nsf/editorialcommentary/story/EAAA57AA5C98DF9D86256FCE0037A86D?OpenDocument

JJD, since you say say that Congress doesn't invent jurisdiction beyond the stated scope given in the constitution, what's your take on the extremely broad interpretation of "interstate commerce?" Seems like the courts have affirmed laws in the past that have granted congress pretty broad permissions, very arguably beyond the intended scope. I've run across multiple posts related to this over at Volokh. There seem to be lots of things regulated by Congress under the guise of interstate commerce that could charitably be described as a stretch. My view is that I'm suggesting a small stretch of an already gaping loophole.

It is just suchpast instances of stretching that lead me to the opinion that, in practice, there is MUCH more correspondence between will and way than you think exists ideally. I realize you find it disconcerting, but my statement about there being a way if there was a will was not based on any idealistic sense of what we should do, but on what has happened in practice.

In fact, isn't this same notion of lawmakers and law-interpreters finding a way when there is a will strongly related to the very idea of judicial activism?...finding more in a written statute than what was intended to be there. Am I wrong to assume that it's not your position that there's no such thing as judicial activism?

And to whoever above brought upthe term "judicial activism," doesn't it seem to be the case that this term is jumping the shark? Its original meaning is lost on the blind partisans. To these people, judicial activism describes any decision a judge makes that they don't like.

bk,

Re: "judicial activism," absolutely. This congressman was spewing the most misleading propaganda about this case. He asserted that the court was interfering by ordering the feeding tube removed. This was in spite of the fact that the court order was a directive to comply with the wishes of Michael Shiavo acting on behalf of his wife in accordance with what were determined to be her wishes. Who's really interfering here?

The Constitution in Exile is a popular theme at Volokh, and the Commerce Clause is on of its key features. Under CiE theory, radicalized interpretation of the Constitution--especially with New Deal reinterpretations of the Commerce Clause, because there was literally a revolution in that area between 1935's Schechter Poultry and 1941's United States v. Darby--has sent the Constitution As The Founders Intended It into exile.

My argument that Congress cannot expand federal jurisdiction beyond constitutional scope will always win. It has to. It's circular. Congress cannot act without constitutional authority; any action by Congress without constitutional authority isn't an action because it's void ab initio; therefore, Congress cannot act without constitutional authority.

Based on info I received recently from a conference on end of life care, no court has denied wishes expressed in a written document of any form JJD can comment on that from from a legal perspective. given this, a uniform federal advanced directive forms seems like an unnecessary federal program. the issue here is not the form its that it wasn't written. Hoever, As I've state before, when there is no explicit written advanced directives most if not all states defer to the next in line decision maker. Again I beleive in most if not all states spouse (when present) is the next in line. so again the Schiavo case followed the appropriate process.

Thank God the bill in the Florida legislature forbidding withdrawel of tube feeding to patients in permanent vegitative state failed.

As for Trent Franks, he's in his second term in the House. His one note has been right to life. I guess the folks in his district like him. As I recall he didn't have very strong opposition this year.

JJD,

right, but that argument doesn't really invalidate my whle point, which is that sometimes you can get away with finding the authority you want, via broad interpretation.

Near as I can tell, all it would take in this specific case (fed'l law establishing standard binding document to protects ones wishes in cases of medical incapacity) would be this:
1)congress writes the law establishing the doc, maybe also mentioning it as necessary for the orderly and timely conducting of interstate commerce

and 2) when it got challenged in court, somewhere far enough up the legal food chain, the right judge or council of judges declares it to be in concord with the commerce clause

Game over.

Oh, and here's another way; make a completed and witnessed form a legally necessary component for eligibility for medicare, valid as a legal document in all 50 states. Bang. Done.

c3,

I can't really comment on specific turns of law in estate or medical fields of practice, because I don't practice in them; I don't know whether any court has discarded a written advance directive because I draft them, litigate them, or counsel clients about them. By analogy, a heart surgeon (like Sen. Frist) can comment confidently on his special area of practice, and can comment generally on medical foundations like anatomy; one should be suspicious of a heart surgeon making neurological assessments.

Brian,

With regard to your first suggestion, yes, a Congressional enactment to regulate advance directives supported by the federal courts would be inherently constitutional--until the judicial winds shifted again. This sort of judicial abandonment of settled law without principled (not political) justification is something I oppose on both left and right, and I believe rightly. If there's any principled legal justification for so drastically altering federal precedent on these matters, I am unaware of it.

On your second suggestion, merely connecting advance directives to federal funding eligibility doesn't necessarily create federal jurisdiction, without more. Under a case called South Dakota v. Dole, 483 U.S. 203 (1987), the Court indicated that, to use its spending power as a fulcrum on which to lever regulation of traditionally state-regulated areas of law not otherwise included within Congress's constitutional jurisdiction, the regulatory interest has to be closely related to the purpose of the appropriation. While an colorable argument could be made that advance directives, insofar as they relate to the treatment of incapacitated persons eligible for these benefits, there is at least one obstacle: you're suggesting that Congress require states accepting such federal funds adopt this specific type of advance directive, but if the advance directive determines when medical treatment is to be withheld, there's no underlying claim on the federal funds--there's no treatment, therefore no reimbursed expenditure. Therefore, the advance directive regulatory interest is fairly attenuated from the spending's purpose--not to mention that Social Security, Medicare, and Medicaid have significantly broader purposes already than ensuring a person has a medical proxy should he become incapacitated.

If I read your second suggestion literally to mean that, in order to be eligible to be reimbursed with federal funds, individuals must execute an advance directive and nominate a proxy to make medical decisions for them, I think you'd lack the necessary political support. You'd essentially be saying, "In order to qualify for federal funds, you have to have someone you trust whom you name as your medical proxy should you be incapacitated." Some people may have no one they trust with such a decision--particularly the elderly surviving spouse with no family.

Not to mention the resistance of state legislatures at being told they must abandon their current laws for a uniform federal law. It's one thing to say "21 for beer or we'll cut highway funds." It's quite another to say "take this or no Medicare."

The Patient Self-Determination Act was in the omnibus budget bill in 1990, P.L. No. 101-508, and is codified in Chapter 7 of Title 42 of the United States Code (Social Security). It is, in fact, a regulation of health care facilities and providers who receive Social Security, Medicare, or Medicaid payments. The receipt of the federal money, and the regulation of the facility (usually commercial entities), provide the federal lever.

JJD:

Omigod, you have this one memorized also? You are way beyond jaded.

This sort of judicial abandonment of settled law without principled (not political) justification is something I oppose on both left and right, and I believe rightly.

Well, like I said before, I think you really meant "shouldn't," not don't. That's really what I was quarreling with you on. My point is that such things (a Congressional enactment to regulate advance directives supported by the federal courts ) can and do happen.

As someone with a legal background (are you in fact a lawyer?) you are naturally protective of the important "shoulds" of the law. I respect the fact of your obvious love of and well thought out philosophy related to law and its practice.

I acknowledge that I am essentially making a case that the ends would justify the means. My take is that this can be true sometimes, and if so, but the means leads to problems down the road, fix that road when you need to cross the next bridge.

And i still think you get that medicare form to work. You'd just need some reasonable mechanism to deal with people unable to identify a designee, probably a court appointed advocate (are these called "guardian ad liems?").

It seems a little peculiar to me to argue against my idea by bringing up the case of people without someone in their life to designate as an advocate, since those would be the people most in need of an easy and readily available mechanism to ensure they were treated as they wanted to be treated should they be incapacitated.

In the document I describe, the most important thing to me is the individual's statement of what they want. I think that if you have someone trustworthy in you live, it makes sense to declare them the sole interpreter of the meaning of that statement, to avoid a court battle.

I understand the politics of it may be difficult. But I'm not seeing a downside from the point of view of individual rights. Whatever the statement says, and regardless of how the law actually works in practice, I think the law has to find a way to clearly state that there's an extremely strong preference for honoring the content of that document, and that ignoring it could only occur in rare extenuating circumstances. One such circumstance, I think, would be that if someone said "spare no expense in extending my life," yet they were indigent, they would not get heroic measures if they were terminal, nor low probability hail mary treatments. And yeah, there's much devil in the details that such generalities would require in practice.

Playing devils advocate for a moment (my favorite hobby) couldn't an arguement be made that the neccesary "constitutional fulcrum" lies within the privilages and immunities clause of the 14th ammendment?

Couldn't Congress simply a Bill which enumrated a persons ability to create an advanced medical directive or designate a medical decision maker and have it honored as a "privilage and immunity" of a citizen of the United States. In which case any state whose laws didn't provide for such or were uneccesarly restrictive or prohibitive in regards the creation of such would find itself in violation of the 14th Ammendment and subject to the jurisdiction of a federal court?

Oberon,

No, the Patient Self-Determination Act required a glance at the federal Popular Name Table, but, since I have one handy and know how to use it, the rest of the information took only a moment.

Brian,

I have the credentials to practice law in Virginia, but I do not practice (though I have litigated in the past) and nothing I post here or anywhere should be considered legal counsel or solicitation to provide legal counsel. My current work is mostly research, some teaching recently, and I have robust experience in campaign consulting, policy advising, and legislative lobbying.

I don't have any problem with your policy goal of ensuring people have stated what they do or do not want, should they be incapacitated, or whom they do or do not want to make such such decisions if they cannot make them themselves. I do have a problem with federalizing the policy. My major challenge is to your premise that it could easily be federalized, or that it should be. In most cases, the only state law that matters is the state law wherein the specific individual is domiciled at the time he executes the document. Standardizing the law in this field isn't that critical--even assuming there are wide variances among the states, and I don't know that there are--because most people will create their document in the state where they live and leave it unchanged for years if not forever, and that document will remain valid even if they move (unless they change its terms after they've changed their domicile).

Cengel,

Short answer: no. If a state were to ban outright the ability of persons to nominate a medical proxy or to direct their medical treatment in advance, there may be a 14th Amendment argument. As I understand it (again, never having practiced in this area of law), the basis of the Cruzan decision widely reported in connection with the Schiavo case was that there is a 14th Amendment right to decline medical treatment; I suspect that included within that right is a right to nominate a proxy to enforce that right should one become unable to so do oneself. Preempting state regulation of the process of doing so is not, I suspect, within the ambit of Section 1 & 5 of the 14th Amendment, and Congress cannot preempt states in areas where it lacks constitutional authority to regulate on its own.

The reason I disagree with the idea that federalizing is unnecessary is this: people tend to follow the path of least resistance, and in this instance it means that many or even most people don't have a living will and healthcare proxy set up.

My policy goal is to maximize the number of people who are legally prepared. My sense is that your argument that federalization is unnecessary is based on your sense that anyone can do it, each state has relevant laws, and those laws generally work fine.

The point, to me, is not that anyone CAN do it, but that the complications in the patchwork of state legal systems ( to say nothing of the not unsubstantial cost of getting these things done by a lawyer) truly do result in many people NOT doing it. Federalizing/standardizing the process has obvious virtues from this POV.

I say that the number of people who don't have living wills and healthcare proxies is strong evidence that the current system is NOT sufficient.

People "don't do things" for a variety of reasons, including the reason that Americans typically procrastinate. I don't write wills and I don't practice estate law, but I do know that the majority of my well-educated and professional friends don't have a will--which is especially troubling when they have minor children; this comes despite the increasing trend over a number of years both in the courts and the legislatures to recognize pre-printed, form wills (albeit state-specific) and their cheap and ready access.

People don't like to think about dying. They don't like to think about lying incapacitated in a hospital room, either. They think it won't happen to them (or in the case of dying, that it won't happen for ages). But it's not just a question of legal transactions: people can vote easily and without a lawyer's involvement (most of the time) and yet many don't. I've never heard anyone say that the comparatively low voter turnout (the past election was an exception) was due to greedy lawyers.

I filed my first will two months before my first child was born. And I had a medical PoA before that. Seen the downside. No thanks.

Jaded,

Thanks for the answer. I have one last question on the 14th in general. The is theoritical, so hopefully you'll be able to venture an opinion.

If a state has laws on the books which support a "privilage and immunity" recognized under the 14th but the process by which it allows for excersize of said rights is so convoluted and restrictive (i.e. licensing fees, uneccesary registrations, etc) that it becomes de facto prohibitive for most people can that be grounds for a 14th Ammendment arguement as well?

Cengel,

The Privileges and Immunities Clause of Sec. 1 of the 14th Amendment, while not what we call a constitutional dead letter, doesn't mean what most people think it means. In The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), the Supreme Court of the United States generalized that the clause prohibits states from infringing upon those prerogatives of citizens of the United States that inhere as direct incidents of their national citizenship. Examples of these are the right to run for federal office (where qualified under federal law), the right to use the public ports and waters of the United States, and the right to move about freely from state to state. There is no right to appoint a medical proxy that inheres directly from citizenship in the United States.

Accordingly, almost all modern private actions under Sec. 1 of the 14th Amendment arise under either the Due Process Clause or the Equal Protection Clause. Due Process consists of both substantive and procedural prongs. If a state were to wholly prohibit the nomination of a medical proxy, or to make the requirements for making the nomination so onerous as to be prohibitive, there may be a due process violation argument.

In order to have an Equal Protection argument, you need to have two different classes of people who are treated differently without either a rational basis or a compelling justification for the different treatment (depending on the way the classes are differentiated or the right implicated in the different treatment).

Jaded,

Thanks, I learn something new every day.
I guess I'm wondering where the perogatives that inhere directly from national citizenship are explicitly enumerated? Is it only within the Constitution itself? Or can certain ones be implied? Or even contained in Federal Statute?
What about International Treaties that enumerate various rights and have been ratified by Congress? Are these, according to the Constitution supposed to carry the force of Federal Law (and thus Federal jurisdiction)? Furthermore whats to prevent Congress from simply enumerating new rights that inhere from national citizenship.

By the way, if this conversation is growing tedious for you, don't feel obligated to answer. I'm just kinda fascinated by the subject... and it's not often I get a chance to discuss it with some-one who has real knowledge/expertiese in the field.