In an interview with Sen. Arlen Specter (R-PA), chairman of the Senate Judiciary Committee, about Congress' intervention to let a federal court review the Terri Schiavo case, CNN senior White House correspondent John King assured Specter that "Congress has the authority [to intervene]. I don't think anyone questions that." In fact, legal scholars from across the political spectrum have questioned Congress' constitutional authority to pre-empt state jurisdiction and intervene on behalf of one party in a particular case.
From the March 22 edition of CNN's Wolf Blitzer Reports:
SPECTER: The Congress has the authority to grant jurisdiction, which Congress did. And I think another level of appellate review is always in order.
KING: You say Congress has the authority. I don't think anyone questions that, that Congress has the authority to grant federal jurisdiction for this case, if you will. But many say Congress should have had the judgment not to intervene, even though it has the authority.
In fact, Douglas W. Kmiec, a conservative law professor at Pepperdine University and a former assistant attorney general under presidents Reagan and George H.W. Bush, expressed doubt about the constitutionality of Congress' action in a March 22 New York Times article, saying the legislation left him anguished:
"I would be naturally inclined to Terri Schiavo's part in this enterprise," Professor Kmiec said. "This is, however, a benignly intended but tragically mistaken law. It contravenes almost every principle known to constitutional jurisprudence."
Similarly, Charles Fried, a conservative Harvard Law School professor and former solicitor general for Reagan, wrote in a March 23 New York Times op-ed that Congress' intervention raised serious constitutional questions:
In their intervention in the Terri Schiavo matter, Republicans in Congress and President Bush have, in a few brief legislative clauses, embraced the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have denounced and sought to discipline for decades.
Fried approvingly quoted a 1990 concurring opinion by U.S. Supreme Court Justice Antonin Scalia from a case "involving precisely the same issues":
Justice Scalia went on to say that he would have preferred that the court had announced, "clearly and promptly, that the federal courts have no business in this field." The problem, he insisted, was that "the point at which life becomes 'worthless,' and the point at which the means necessary to preserve it become 'extraordinary' or 'inappropriate,' are neither set forth in the Constitution nor known to the nine justices of this court any better than they are known to nine people picked at random from the Kansas City telephone directory."
Following the quotation, Fried concluded: "Congress's intervention in the Schiavo case is equally mischievous."
On the other side of the ideological spectrum, progressive Harvard Law School professor Laurence H. Tribe also questioned Congress' authority to intervene. In a discussion on the March 21 broadcast of PBS' The News Hour with Jim Lehrer, Tribe stated unequivocally that he believes Congress' action was unconstitutional, following a question from anchor Jim Lehrer:
LEHRER: Professor Tribe, first of all, were Congress and the president within their rights to make this a federal case today?
TRIBE: I don't think so, Jim. I think that Congress would have the power to pass a general law after studying, as it says it intends to, the situation around the country to see of the thousands of tragic cases like this in which families are torn asunder about what should happen.
Which of those cases should go to federal court? When is it enough for the state courts to rule? But to pluck this one case out of the universe and to say of this case, as the president did, it's a complex case. Sure, it is. There are thousands of them.
But what is it about this case that makes it fair to the parties involved? And one can never tell which of them is more hurt or which of them is more helped -- to create an entirely unique legal regime for them -- the same substantive law supposedly.
But unlike everybody else in the history of the country -- and apparently everybody in the future because the law says it shall not serve as a precedent -- they get to turn back the clock, go to an earlier time and hold completely new evidentiary hearings as though these years of litigation hadn't occurred. Doing this special thing is arbitrary power, not really law, and it violates the due process clause as well as the separation of powers.