The contagion of constitutional avoidance.

• Author: Gant, Scott E.

Terri Schiavo passed away on March 31, 2005. In the weeks leading up to her death, what was once a wrenching personal matter for Ms. Schiavo's family and loved ones transformed into a political and legal drama that gripped much of the nation and garnered attention around the world. There was much about Ms. Schiavo's case to sadden any of us, regardless of one's political or religious views. Everyone should be troubled, however, by the fact that virtually all members of the legislative, executive and judicial branches involved in enacting or applying the "Act for the relief of the parents of Theresa Marie Schiavo" (also referred to as "Terri's Law") (1) seemingly ignored serious questions about the law's constitutionality, and in so doing avoided their responsibilities as constitutional interpreters.

Constitutional interpretation by the legislative and executive branches has been the subject of robust discussion by academicians and other commentators in recent years. (2) Some (myself included) have urged non-judicial actors to take more seriously their roles as interpreters of the Constitution and in dialogue about its meaning and application. (3) For us, this aspect of the Schiavo matter should have been disheartening. That the judiciary seemingly joined in the avoidance of hard constitutional questions is all the more disappointing.

Legislators and executive branch officers take oaths to "support" the Constitution, (4) while the President swears to "preserve, protect and defend" the Constitution. (5) As I have argued elsewhere, at a minimum these pledges obligate officials to consider for themselves the meaning of the Constitution and its connection to their work, not simply rely on the judiciary. (6)

In Congress's haste to pass Terri's Law, it gave remarkably little consideration to whether the legislation was consistent with various constitutional provisions and principles. The law provides:

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withdrawing or withholding of food, fluids, or mental treatment necessary to sustain life. (7) The Senate undertook no substantive evaluation of the law, and passed it without debate after behind the scenes wrangling over the provisions of the bill. (8) A review of the Congressional Record memorializing House deliberation reveals but a few terse references to the legislation's constitutionality, and most of those were by opponents of the bill. The only remotely substantive attention paid to constitutional issues appears in what is described as a "supplemental legislative history" offered by James Sensenbrenner, (9) Chairman of the House Judiciary Committee, who argued that the bill is consistent with Supreme Court precedent because it does not "'reopen [] (or direct [] the reopening of) final judgments in a whole class of cases [or] in a particular suit,'" (10) and "presents no problems regarding retrospective application." (11) Congressman Sensenbrenner did not address any of the other potential constitutional objections to the law, nor does it appear those were given consideration by others in Congress. (12)

Despite the unusual nature of Terri's Law and the circumstances of its enactment, the statement released by the President immediately after he signed the bill mentioned nothing about the constitutional issues, (13) and no White House officials offered public comment on the constitutionality of the new law. Although it is impossible to know what discussions occurred in the West Wing before the President signed it, there is no indication that the President or those who advise him evaluated any of the difficult constitutional questions raised by Terri's Law. The Department of Justice compounded the President's silence by submitting a "Statement of Interest" brief to the federal district court in support of Ms. Schiavo's parents which asserted that Terri's Law "confers jurisdiction" on the district court without acknowledging any of the constitutional issues (or explaining why the law does not run afoul of the Constitution).

Unfortunately, the track record of legislative and executive branch participation in dialogue about constitutional meaning is uneven, at best. (14) As a predictive matter, it is not surprising that the task of evaluating the constitutionality of Terri's Law was passed to the courts with little more than a scintilla of serious deliberation. (15) Nevertheless, we might have hoped that the extraordinary nature of Terri's Law would have prompted extra vigilance in ensuring adherence to the Constitution. (16)

More surprising, however, is that the habit of avoiding constitutional scrutiny seems to have afflicted the judiciary as well in this case. In response to the motion for a temporary restraining order and injunctive relief filed by Ms. Schiavo's parents hours after the President signed Terri's Law, attorneys for Michael Schiavo challenged the statute's constitutionality on a number of grounds (including that it violated the due process and equal protection clauses as well as the Tenth Amendment, and that Congress exceeded it powers under the Constitution in enacting the law). (17) Despite these arguments, and despite noting "there may be substantial issues concerning the constitutionality of the Act," the district court simply presumed the statute constitutional and proceeded to address the merits of the request. (18)

On appeal, the Eleventh Circuit panel reviewing the district court's denial of a temporary restraining order and preliminary...