Thursday, March 24, 2005

Save the Turtles but not Terri Schiavo

Hugh Hewitt has stinging commentary today at the Weekly Standard:

But people do need to focus on an unintended consequence of the weekend legislation: the illumination--again--of the contempt of the federal courts for their coordinate branches, and the contempt of the left for people of faith.
So Congress passed a statute that was intended to force a new trial on the merits of Terri's parents' concern that their daughter's wishes were not being honored. The president signed it. DeLay summarized the intent of Congress in his Sunday press conference: "We are confident this compromise will restore nutrition and hydration to Mrs. Schiavo as long as that appeal endures. . . . Obviously, the judge will have to put the feeding tube back in or she could die before the case is heard."

So much for "obviously." The District Court ruled that because there was no substantial likelihood that Terri's parents would prevail in the hearing not yet held, he would not order hydration and nutrition resumed. Two of three judges on appeal agreed, and so, at this writing Terri Schiavo remains without food and water--despite Congressional direction to the contrary.

The Supreme Court has long recognized that "Congress may intervene and guide or control the exercise of the courts' [equitable] discretion," even though such direction is rare and even though the Court will "not lightly assume that Congress had intended to depart from established principles." [Weinberger v. Romero 305, 313 (1982)]

One area where Congress mandated a hair trigger on injunctive relief is when the threat is to an endangered species. A few years ago a District Court in the 11th Circuit correctly ruled that the "pronouncements of the Supreme Court teach that, in considering the entry of an injunction under the ESA [Endangered Species Act]: (1) the Court does not have 'traditional equitable discretion' to balance the parties' interest, (2) any threatened harm is per se irreparable harm, and (3) the public interest always favors the imposition of an injunction under the Act." [Loggerhead Turtle v. Volusia County, Florida 92 F. Supp. 1296, 1301 (2000).] /p>

In the case of the Endangered Species Act, the courts have built the standard of review from the statute's breadth and Congressional intent. I cannot think of a more clear-cut expression of Congressional intent and urgency than the extraordinary intervention of last weekend and the clear pronouncements of many legislators on the matter of Terri Schiavo. They assumed the federal district court would stay Terri's starvation pending the outcome of the de novo proceeding they had mandated, even as convicted murderers have their executions stayed as federal courts process their appeals from state proceedings.

Thus the courts, in the case of species conflicts, have built a standard governing the issuance of stays that was not on the face of the statute, but have refused to enforce the standard that was clearly intended in the case of Terri Schiavo.

So animals are more important than humans. PETA must be pleased.

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