HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, March 18, 2005

Con Law Profs on the House Subpoena and Senate "Invitation" to Terri Schiavo

As mentioned below, the chair of the House Committee on Government Reform has subpoenaed Terri Schiavo and the chair of the Senate Committee on Health, Education, Labor & Pensions has invited her to testify on health policy and the incapacitated.  The reason appears on Sen. Frist's website: They want to intimidate her physicians and hospice administrators.

Some legal commentary on these moves by Congressional Republicans is starting to surface (AP story, 4:29 p.m., EST):

Several legal analysts doubted courts would have allowed the congressional effort to stand.

``It's of dubious legality,'' said Seth Kreimer, a constitutional law professor at the University of Pennsylvania. . . .

Kreimer said the subpoenas were particularly questionable after the full Congress failed to pass legislation. Congress is charged with passing laws that the courts enforce, not issuing subpoenas that interfere with court orders, he said.

A subpoena ordering the hospice to keep her on life support would really fall under the authority of the courts, while the subpoena to Schiavo may be an improper intimidation tactic since Terri Schiavo clearly is unable to testify, said Laurence Tribe, a Harvard law professor.

``People should remember once we establish precedent where two congressional committees by issuing subpoenas can upset the determinations of a court, it could cut both ways,'' he said. ``A physician administering a unique treatment to keep someone from dying could be stopped if the majority thinks that's unnatural.''

Joseph W. Little, a constitutional law professor at the University of Florida, said it appears GOP leaders are trying to twist the law.

``It certainly extraordinary that an individual case could give rise to this kind of activity,'' he said. ``We have to assume there's some broader political agenda, with little legal grounds behind it.''


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