Undue process: congressional referral and judicial resistance in the Schiavo controversy.

• Author: Samaha, Adam M.

The congressional response to the Schiavo controversy was both extraordinary and feeble. It surely was exceptional in its speed and specificity. An Act for the Relief of the Parents of Theresa Marie Schiavo (1) was introduced and approved within a weekend--just days after the feeding tube was removed from Schiavo's body, and only a month after her husband obtained a state court order for that purpose. (2) The legislation, moreover, could not have been more targeted. The statute's content followed its title, granting certain litigation privileges to the parents and Schiavo alone. Congress had legislated in a one-case-only fashion before, of course. (3) But private bills tend to resolve controversies. The Schiavo Act, even on its broadest conceivable reading, could do nothing to settle the dispute it addressed. It was meant to unsettle the situation, which the federal courts promptly refused to do.

This kind of congressional action--dealing with a single private dispute and disrupting prior judicial conclusions without implementing new substantive law--is unlikely to recur with any frequency. The Act was more high drama than emerging model. And it is surprisingly difficult to tell whether the federal courts legitimately avoided a more thorough evaluation of the parents' claims. The constitutionality of the Act is open to good-faith disagreement. (4) So it could be that the decision costs associated with analyzing the constitutional question at this late date are not worth the value of knowing the right answer.

This concern about decision costs is linked to a much larger problem, however--a problem fortuitously central to a sound evaluation of the Schiavo Act, and essentially unexplored by commentators. The issue is "undue process" in government decision making. We know that process can be too costly as a matter of policy. Decision costs are just as real as error costs, and there is a well-understood difference between maximizing process and optimizing process. (5) But is excessive process, like inadequate process, a constitutional problem? For all government institutions and for every threatened private interest? Are courts appropriate agents for policing undue-process violations? Despite its impressive peculiarities, passage of the Schiavo Act is an appropriate occasion on which to ask these questions.

1. WHAT CONGRESS DEMANDED

   The content of the Schiavo Act was, in many ways, trivial. This fact hardly penetrated the intense public debate about the proper outcome of the dispute--whether Schiavo, who had been diagnosed as stranded in a persistent vegetative state for years, should die quickly in accord with her husband's position; or whether she should remain alive and attached to a feeding tube in the hope of some improvement in her condition, as her parents requested. The Act's modest objective nonetheless affects an evaluation of its lawfulness.

   Congress offered no new claim on which Schiavo or her parents could obtain a judicial remedy. The Act was perfectly explicit on this point. It was to have no effect on substantive law. (6) Nor did the statute direct courts to reach a congressionally favored result under existing law. Judges were no less and no more free after the Act to identify, interpret, and apply substantive federal law. The Act did grant a federal district court jurisdiction to "hear, determine, and render judgment" on a set of federal claims by or on behalf of Schiavo. (7) But in isolation, this jurisdictional grant was superfluous. The U.S. Code already conferred general federal question jurisdiction on the federal district courts. (8) And while the Act sternly announced that the district court "shall issue such declaratory and injunctive relief as may be necessary to protect the [relevant] rights of Theresa Marie Schiavo," this command applied only "[a]fter a determination of the merits" (9) and it added little if anything to the court's preexisting remedial powers and obligations. (10) So the Schiavo Act had nothing important to say about original jurisdiction, substantive law, or judicial remedies.

   The objective of the statute was to facilitate the parents' ability to obtain a judgment on the merits of their federal claims in a federal court. Those lacking experience with the backwaters of federal courts doctrine might be puzzled that another Act of Congress could be necessary to achieve that end. Over the years, however, the federal judiciary has devised a range of tools for avoiding the merits of a claim. Some of these tools might be traced to statutory text; others cannot be. In any event, reluctance to adjudicate can be found in cases involving controversial constitutional questions, (11) previously litigated issues, (12) and past or pending state judicial proceedings. (13) The Schiavo controversy fit all three categories. There had been extensive prior litigation. (14) Those battles culminated in a state court order directing removal of the feeding tube, (15) and the U.S. Supreme Court had just refused to stay the judgment. (16) Moreover, Schiavo's parents were surely going to assert federal constitutional claims to keep her alive, arguments that were the subject of media focus and interest-group action. (17) Without the Act, Schiavo's parents faced numerous objections with exotic-sounding labels like the Rooker-Feldman doctrine, the Anti-Injunction Act, abstention, preclusion, prudential standing principles, and expiration of the applicable statute of limitations.

   The Act was written to clear away those sorts of hurdles to a judgment on the merits. (18) The gist of the legislative effort is in the following sentence:

   In such a suit, the District Court shall determine de novo any claim of a violation of any [federal] right of Theresa Marie Schiavo ..., notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. (19) Congress granted Schiavo's parents no more than a referral to federal court for more process.

2. WHAT THE COURTS DELIVERED

   Yet the Act made little difference. The courts quickly identified a rationale for dismissing the parents' suit without an extended examination of the merits, without contradicting the text of the Act, and without declaring the Act invalid. The mechanism was denial of interim relief necessary to keep Schiavo, and the controversy, alive. (20)

   In retrospect, judicial resistance can be accounted for--especially for those who see federal courts as a collection of political actors operating with special uniforms but without special constraints on personal preferences. The dispute was controversial to put it mildly, and it appeared that the general public reacted unfavorably to Washington's intervention. Although the purpose of the Act could have been constructed in a manner conducive to interim relief, the plain text spoke to several other procedural hurdles without mentioning that one. (21) Moreover, the parents' federal claims seemed weak. The statutes they cited looked unhelpful; (22) their procedural due process claim ran up against seven years of litigation; and their substantive due process count was novel. There was little or no precedent for a standalone federal constitutional right to receive food or medical treatment. In any event, federal courts have a (part-time) tradition of hesitation in controversial cases. (23) Congress must legislate against this backdrop.

   At the same time, there was something bold about mooting-by-death a national controversy, particularly one that Congress wanted litigated to some extent. (24) Congress should have considerable control over federal jurisdiction. Lower federal courts were not mandated by the text of the Constitution; they were authorized at the option of Congress. The federal judiciary itself relies on statutory grants to justify its authority to adjudicate, and federal courts will ordinarily accept legislative adjustments to jurisdiction. Some subservience to legislative wishes makes good sense in democracies with unelected judges, especially if those judges exercise constitutional judicial review. Political control over jurisdiction has its dangers, but it can reduce tension between judicial independence and government accountability to popular will. A system in which courts both control their own jurisdiction and claim final authority on matters of fundamental law might not be stable and it might not be normatively defensible.

3. UNDUE PROCESS?

   Was court resistance justified by something more than selfish institutional prerogative? Was the Schiavo Act merely controversial or also unconstitutional? These questions turn out to be difficult. But the constitutional issues involved are connected to a big question about excessive process in constitutional law.

   1. CONSTITUTIONAL OBJECTIONS

      The most plausible constitutional challenge to the Act depends on three interrelated arguments under one general idea. The general notion is about institutional roles--in short, that Congress behaved more like a court of appeals than a legislature. The Act did not "adjudicate" the Schiavo case in a strict sense. But Congress did single out one private dispute for additional review in a lower federal tribunal. Three specific arguments fill out this criticism, charging Congress with (1) furnishing special rules of decision for a particular case, (2) while burdening Schiavo's freedom to refuse medical care, and (3) reopening the final judgment of a state court after years of litigation.

      1. Singling Out

         When a legislature singles out one case, especially a case pending in court, it begins to take on the function of adjudicator. In crude terms, legislatures are designed to create prospective and generally applicable law which is interpreted and applied to specific cases by courts. Distinct roles track distinct institutional features, with legislatures composed of representatives accountable to popular (or at least...