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Friday, March 18, 2005

The Schiavo Subpoena: More Silly McCulloch

Earlier today the House issued a congressional subpoena in the Schiavo right-to-tie case. Orin Kerr discusses it here, CNN reports on it here, the NYT here. House Republican leadership issued a statement, and Kerr notes, that the subpoena is to "require hospice administrators and attending physicians to preserve nutrition and hydration for Terri Schiavo to allow Congress to fully understand the procedures and practices that are currently keeping her alive."

The explanation, it seems, is McCulloch--that the subpoena is "necessary and proper" to some constitutional congressional power. I discussed McCulloch below in the context of Ashcroft v. Raich. There, the argument was that, per Wickard, Congress should be able to regulate non-economic, entirely intrastate activity because it was necessary and proper to the regulation of the interstate activity. While I think that is a ridiculous use of McCulloch, I think this Schiavo subpoena is plain silliness.

To what, one might ask, is this subpoena necessary and proper? I can't think of how under Article I, section 8 Congress could pass a statute regulating this activity, and there's serious question whether such a statute would be constitutional, as the Florida Supreme Court held. If Congress couldn't even legislate if it wanted to, how is a subpoena halting a state court order necessary and proper to a valid power?

Moreover, it seems that McCulloch can't ignore structure and relationships, particularly separation of powers. If Congress can convene what are basically courts with the power of contempt for those who refuse to cooperate, then the legislature is making the law, executing the law, and interpreting the law. This, I think, is problematic.

Now, I recognize that McCulloch is necessary, and had it repeatedly beat into me by my Federal Courts Professor. But it, like the commerce power, must have some semblance of a limit. Surely Mr. Frist can't say with a straight face that this subpoena is to gather information for future legislation.

UPDATE: Jack Balkin posts on the controversy, calling Congressional Republicans "fair weather federalists":
Few national politicians are seriously interested in federalism or judicial restraint when this would interfere with something they really care about. The Schiavo controversy demonstrates, I think, that pro-life values are likely to trump federalism values and concerns about an activist judiciary when the chips are down; they will even trump them when politicians think they can gain something from grandstanding, which appears to be what is going on here.
I do agree to some extent, wish my party were more true to federalism. But I wonder how important it is for the legislature, compared to the judiciary, to be true to federalism. Everyone knows where they stand on how true the judiciary should be to the text and intent of the Constitution, but I think the legislature's duty is an important discussion.


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