Checks and balances... who needs them?

CBS News | Trial By Legislation | March 21, 2005 08:00:11

Some very good summing up of an astoundingly bad situation.


QUESTION: What does all of that mean? Explain it to me like I’m a fifth-grader.

ANSWER: It means that Congress has literally made a “federal case” out of the Schiavo dispute. It means that Schiavo’s parents now have a right to assert essentially the same claims they already have asserted in state court in Florida in a new forum– federal court– and applying federal constitutional principles instead of state constitutional principles. It means that the federal trial judge who presides over the case must review all of the facts and law from scratch, without deferring to the legal judgments and factual conclusions the Florida courts have reached after many years of litigation– and 21 separate, written, published rulings in the case. It means that the federal trial judge may order the tube reinserted into Terri Schiavo almost immediately upon getting the case. It means that Congress has interjected itself into a state law dispute, at the end of that dispute, on the side of one litigant over another.


QUESTION: What does that concept do the regular give and take between the court systems, the idea of comity and cooperation between judges?

ANSWER: It destroys it. But that’s the whole point of this Congressional action. Not liking a particular result in a case that has been litigated fully and completely by a court with competent jurisdiction, Congress now has said that the game must be re-done with new rules that heavily favor one side over the other. The implications of this move are astonishing. Just think about it. Anytime Congress doesn’t like the result in a particular case, it could swoop in and call a “do-over,” which is essentially what this legislation represents. And this from a Congress that has for a decade or so tried to keep all sorts of citizens– including disabled employees– out of federal court. If this law is declared valid, no decision in any state court in the country will be immune from Congressional second-guessing. It would throw out of whack the entire concept of separation of powers. The constitutional law expert Tribe calls it “trial by legislation” and he is right.