by Matt Barr

Not to put too fine a point on it

Prof. Althouse plumbs her textualist depths:

[T]he federal courts were given a statutory text to follow, and the fact is they followed that text. Yet the TV commentators -- at least what I heard -- never made this most basic point....

[T]he substance of the statute -- as opposed to the procedure -- is in Section 1:

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

Those procedures outlined in Section 2, including the authority rehear claims de novo, apply to the "suit or claim" provided for in Section 1. Read the boldface text: the statute only authorized the parents to bring federal law claims. It gives no authority to redo the state law claims, which is what the state courts relied on in appointing the husband as the decisionmaker and so forth....

Did any of the talking heads on the news analysis shows make this point? I didn't hear it. Yet this is the main legal point that explains what the federal courts did. Maybe somehow it's too technical or dry to say on television. The other night, Harvard lawprof Laurence Tribe was on Greta Van Susteren's show and not only didn't he make this point, he asserted that every legal expert thinks the statute is completely unconstitutional. But it wasn't so obviously unconstitutional that the federal courts started there. If it was so unconstitutional -- "up, down, and sideways," as Tribe put it -- why didn't the court begin with that? It's a jurisdiction-granting statute. If there is no jurisdiction, there's nothing more to say. It should have been easy -- if Tribe is right about blatant unconstitutionality -- to say the statute purports to give the court jurisdiction, but the statute is unconstitutional and therefore void. Why then did the court presume jurisdiction and move on to the likelihood of success on the merits?

Prof. Tribe should be acquainted with Article III, Section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority...

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

And Amendment XIV -- prohibiting deprivation of life without due process of law -- Section 5:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The efficacy of Congress' intervention is fertile ground enough for complaining. People of Tribe's ilk don't need to resort to arguing its legality. It's dishonest.

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