A brief rant about the separation of powers

[tigertoy]

Reading over the headlines on Yahoo News, I particularly revolted by this story about how the House Republicans, on party lines, passed a bill barring the federal courts from considering challenges to the infamous words 'under God' in the Pledge of Allegiance.

I was also struck by the juxtaposition with this one, about how the Florida Supreme Court struck down the law shoved through by Jeb Bush barring Terri Schiavo's husband from letting his dead wife's body stop taking up a hospital bed.

I'm not going to rant on either of the specific issues these laws are directed at, even though they are both worthy of some ranting on their own. The real issue that gets my goat today is the contempt that legislators display for the concept of separation of powers. Once they think they are on the Morally Right side of an issue, they seem to forget that we have three branches of government in America for good reasons, and only a change in the Constitution can change the balance between them.

Congressmen for sure, and I assume Florida state legislators also, take an oath of office to uphold their respective Constitutions. At what point does passing legislation that deliberately undermines the Constitution become more than an issue for the voters to consider in the next election and rise to something for which they should be impeached or even charged with treason?

Comments

[billroper]

As usual, there are two sides to every story. You might be interested in this article which suggests that there may be more to the Terri Schiavo story than you'd believe.

[tigertoy.livejournal.com]

The point of yesterday's rant wasn't the Schiavo case itself, but rather the fact that the courts made a lawful (maybe wrong, but lawful, by Constitutional process) decision, and the legislature decided that because they didn't like that decision, that gave them the right to override the Florida Constitution and pass a law retroactively reversing a court decision in a specific case. As Florida's chief justice rightly pointed out, there's a good reason that that's not allowed, because if it was, no case could ever be over.

I am offended and outraged, and I think it is appropriate for all of us to be offended and outraged, when the legislature knowingly and intentionally passes a law that they know is unconstitutional and will be struck down. It's the wrong way to do things even if they genuinely feel they're doing it to correct an injustice, and it's doubly wrong when they're doing it to score political points, which is unquestionably the reason for the Pledge vote and probably the reason for most of the Florida legislators' votes in the Schiavo case. If the people believe this stuff is OK, in a couple of generations the courts will come around to what the people believe, and pretty soon (in historical terms) the Constitution is nothing but a historical footnote because the legislature has taken away the court's power to enforce it.

In the Schiavo case specifically, the link you gave (actually the article just above where the link points to) does raise some points which, if substantiated, would make the case less clear cut. I haven't been following the case terribly closely, but I thought I was familiar with the story in general, and I hadn't heard anyone impugn Michael Schiavo's motives before, which tends to make me think that neither the courts that heard the case nor the media that covered it thought the claims against Michael Schiavo were even credible enough to use to inflame the controversy. Some people would say that's because of the supposed liberal bias in the media, but since the bias I see in the media is toward giving every issue they cover two sides, creating controversy and sensationalism rather than trying to clarify, and they clearly missed a chance to do it in this case, it'll take more than some random blog to convince me.

[billroper]

Courts rule on points of law and constitutionality on a regular basis. The question in the Schiavo case is not whether the legislature can pass a law to overrule a court decision, because it's clear that they have that privilege when a court is ruling on points of law. (For instance, Major League Baseball continues to have an antitrust exemption granted by the Supreme Court specifically because Congress has not passed a law that would remove it. The Supreme Court refuses to overturn the -- really odd! -- precedent, partly on the grounds that Congress hasn't passed such a law; thus, they must be happy with the decision.)

The question here is whether the law that the Florida legislature passed is constitutional under both the Florida and the U.S. Constitutions. When legislatures pass such a law, they generally do their best to try to craft it in such a way that a court will view it as constitutional. (Unless they're just trying to make a political point, in which case, all bets are off.) The Florida Supreme Court has -- in what should not be a great surprise -- ruled the law unconstitutional. Since I haven't read the text of their decision, nor the Florida constitution, I can't tell you whether their reasoning appears valid or they're just being pissy. I understand that Governor Bush is considering appealing to the U.S. Supreme Court, but hasn't made a decision yet.

As far as Michael Schiavo's motives, I have heard these things before, some of them via Marty Burke who -- for reasons that you might imagine -- has taken an interest in the case. I can't tell you whether Terri Schiavo is actually brain dead or not, but it's fairly clear that her husband has sufficient motivation to want her dead.

[billroper]

Let me give you an example which you may find to be on point:

Suppose that I own a gun. We'll call it the BlastMaster 100. A local law-enforcement agency has a problem with my having that gun (it can fire 100 heat-seeking bullets in a single burst). We go to court, appeal up the chain, and the state supreme court finds that the gun is legal according to state law. I win.

The legislature then passes a law outlawing the BlastMaster 100. Unless the state (or perhaps Federal) constitution allows me to own a BlastMaster 100 (which would be an issue for the courts to decide), my precious gun is now illegal, despite the fact that it was found legal in a previous ruling of the court.

Now, if we apply the same logic to the Schiavo case, unless there is a constitutional issue that would make Michael Schiavo the sole arbiter of what his wife's wishes would be, then even though a court found it legal to remove her feeding tube based on the then-current law, it would be perfectly legal for the legislature to pass a law allowing the governor to appoint a guardian for the woman who would order the feeding tube reinserted.

Does that make sense?

[tigertoy.livejournal.com]

I suspect we're wandering deep enough into this morass that I should admit I don't know what I'm talking about and shut up.

The Florida Supreme Court found the law unconstitutional. My understanding is that no one was the least bit surprised, that everyone knew it was unconstitutional from the start, and if that's the case, the legislature and governor had no business passing and signing the law. My understanding of why it was unconstitutional is that, rather than making a general change in the law which could be applied objectively to new cases going forward (which would be pretty hard to tailor unless it completely outlawed removing feeding tubes, which I *hope* would be politically unacceptable), they made a law about this specific case, whose only purpose was to change one court decision without changing the law in general.

In your example, the legislature can pass a law that says from this day forward, no one can own a BlastMaster 100, but they can't pass a law that says Bill Roper can't own a BlastMaster 100, nor can they pass a law that says that Bill Roper wasn't allowed to own a BlastMaster 100 last year.

[billroper]

However, it's not uncommon for legislatures to carefully tailor a bill so that it applies to one person or corporation. For example, the Chicago City Council has passed various bills that apply to privately owned outdoor stadiums with seating capacities greater than 30,000 within the Chicago city limits.

By the greatest of coincidence, that would apply to Wrigley Field and no other venue.

Now I wouldn't disagree with an argument that said that such laws are generally bad public policy, but I don't see them getting thrown out in court very often.

[tigertoy.livejournal.com]

Isn't the Stadium-formerly-known-as-Comiskey in the city limits?

I can't any anything more to the details of why the law in the Schiavo case was tossed out, but it was, and I do think everyone knew it would be.

In any case, the only reason I mentioned the Schiavo case at all was it happened to be in the headlines on the same day as the House vote on not allowing the courts to hear challenges to the Pledge. I could bring up other examples (the so-called partial birth abortion ban and the attempts to ban Internet porn come to mind), but the real point under discussion was legislators who pass laws they know damn well will be struck down, and whether boiling in oil is sufficient or they should be staked to a fire ant hill for a week beforehand. Hyperbole aside, there are times Congress needs to be cited for contempt of court for the laws they pass.

[billroper]

The new stadium is owned by the Illinois Stadium Authority, which is a government body, so they aren't subject to that law. See how simple it is? :)

As far as, for instance, the partial birth abortion ban, well, Congress went to substantial trouble to attempt to document in both the bill and its legislative history that this was a procedure that was never necessary in order to preserve the health of the mother, all in an attempt to persuade the Supreme Court that the law shouldn't be struck down. We will eventually find out whether or not they were successful.

The point that I'm making is that legislators don't generally pass laws with the expectation that the courts will strike them down, contrary to your impression. Sometimes, yes, but not generally. In fact, there was a strong expectation in many quarters that the Supreme Court would strike down the McCain-Feingold campaign finance reform bill based on the restrictions it places on free speech, particularly on political speech, which is one of the areas of free speech most deserving of protection.

As you may have noticed, they didn't strike it down. Surprise!

[tigertoy.livejournal.com]

I never claimed that most legislation, or even a significant percentage of legislation, is knowingly unconstitutional; I just claimed that they do it far more often than I like or than I think they should be able to get a pass on. More than once in any given legislator's career is clearly too often -- doubly so when it's the same issue they've already been smacked down on once.

If we're going to get into a debate about the merits of McCain-Feingold, we need to start a new string. Maybe I'll write an entry about my thoughts on the subject one of these fine days.