Academic journal article Constitutional Commentary

Undue Process: Congressional Referral and Judicial Resistance in the Schiavo Controversy

Academic journal article Constitutional Commentary

Undue Process: Congressional Referral and Judicial Resistance in the Schiavo Controversy

Article excerpt

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.


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. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.