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Usurpation of Power

An Illegal Action by the U.S. Senate

Copyright © 2005 by David E. Ross

Some politicians recognize no limit on exploiting a family tragedy — no matter how personal or private — to score points with the voters. Republican leaders of Congress — supported by President Bush — rammed through legislation in an attempt to save the life of Terri Schiavo. While S.686 was indeed passed and signed into law, it proved unsuccessful in saving her life.

Much of the uproar over Terri Schiavo ended with her death. Now, a closer look at the passage of S.686 (through which the issue moved into federal courts) is necessary. However, we must first consider the historical basis of some of the provisions of our U.S. Constitution.

As the Revolutionary War drew to a close, our nation's founders were very much aware of the dangers posed by a strong government. As a result, they ratified the Articles of Confederation in 1781 to provide a weak government for the new nation. The national government proved too weak, impairing trade and commerce and creating a risk that we would be unable to defend the country against attacks by other nations.

In 1789, the Articles of Confederation were therefore replaced by the Constitution. Heeding historical lessons of the abuse of government power seen in England, the Constitution still limited the federal government in the United States. For a long time (and continuing today), all government power in England belongs to the central government. One limit on our new government was created by listing the powers of the federal government in the Constitution; anything that was not explicitly listed belonged to the states.

Another very important feature was the separation of powers between the legislative, executive, and judicial branches. For example, unlike the relationship between King and Parliament, if the President disagreed with Congress, he could not dissolve Congress and call new elections.

In 1640 in England (while English colonies were being established in what is today the United States), a new Parliament began meeting. It met for 20 years, long beyond the expiration of any mandate from the voters (at that time, only wealthy landowners). For obvious reasons, this was known as the Long Parliament, the members of which refused to consider new elections because they feared they would lose power and influence. To prevent such a situation in the United States, the Constitution provides for fixed terms and regular elections of members of both houses of Congress. The provision for fixed terms also means that the President cannot remove a Congress with which he disagrees.

While the Long Parliament was in session, in 1648, its leaders purged dissident members. For 12 more years, only a fraction of Parliament governed England. This truncation was derisively called the Rump Parliament because the rest of the body had been cut away. Thus, England was ruled by a minority of an already non-representative legislature. The authors of the U.S. Constitution clearly did not want a Rump Congress making laws.

On Sunday evening, 20 March 2005, with only three Senators present — Bill Frist (Tennessee), Mel Martinez (Florida), and John Warner (Virginia), all Republicans (source: Los Angeles Times, 22 March 2005) — the U.S. Senate passed S.686 and sent it to the House of Representatives. The Constitution clearly required that 51 Senators be present. They were not! Not only was S.686 bad legislation — and eventually fruitless — but it was also passed illegally. We now have a rump Senate enacting laws. Three men usurped the power that legally cannot be exercised without at least 48 other senators present.

S.686 has other constitutional problems.

• Attempting to interfere with the guardianship of a husband over his incompetent wife, Congress legislated in an area over which is outside the authority of the federal government. Nowhere in the Constitution is the federal government given the power to control the relationship between spouses.

  The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  U.S. Constitution
  10th Amendment

  Thus, this was an issue that only the states could control. It did not belong in the federal courts and was not an issue for Congress and the President to resolve.

• While the 11th Circuit Court of Appeal — where the issue was appealed twice — issued no formal written opinions when the full court denied appeals from Terri Schiavo's parents, Appeals Judge Stanley Birch provided a strongly written concurrence to the second denial. In it, Judge Birch declared that the mandates in S.686 to force the federal courts to take up this issue and the directions in that law to ignore prior state court decisions both violated the fundamental separation of powers between the Congress, President, and judiciary as described in the first three articles of the Constitution.

S.686 ordered the federal judiciary to be activist, a strange law to be so overwhelmingly supported by the same Republican members of Congress who so loudly denounce activist judges. Worse, S.686 established a very horrific precedent by indicating that Congress is willing to overturn the decisions of state courts, decisions that stretched from a trial court all the way to the state's supreme court — more than once. From now on, we are all at risk that no decision made in state courts can be accepted as final.

Our nation's founders were quite correct in prohibiting actions by rump sessions of Congress. See what a mess is created when that prohibition is ignored.

2 April 2005

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