But I do want to say something about the recent Congressional subpoena, about which I have strongly unambivalent feelings. Whatever one's views about the rationality or propriety of the move, Congress has, and should have, the authority to subpoena anyone and everyone relevant to its legislative work. Further, Congress itself is the one that determines whether something is relevant to its legislative work. I thus find reports of Judge Greer's ordering hospital staff to disregard the congressional subpoena rather disturbing, far more disturbing than the abuse of Congressional powers I have seen people claim the subpoenas to be (personally, I see no abuse). And the arguments I have seen in support of the judge's actions are utterly absurd. For instance, this comment:
Stetson University law professor Charles Rose said that if a congressional subpoena can be used to keep her alive, Congress would essentially have blanket power to overrule state courts.
Which is absurd; the only way this could happen is if Congress forced the person served to testify for the rest of their lives. What a congressional subpoena does is call a person before Congress in order to testify. An equally silly comment, from the same source:
"If you do that, why have a state at all?" Rose said. "Why not just have the federal government do everything? It's absolutely contrary to every principle of federalism."
Yes, that makes sense; Congress is going to usurp all state government functions purely in virtue of requiring people to testify before it. Oh, the menace.
My inclination is to agree with those who say that Judge Greer should be charged with contempt of Congress; whatever the propriety of the subpoena, it is not his place to decide whether Congress is within its rights in issuing it. But part of this is due to the fact that I see no constitutional need for conflict of powers here: at most the testimony delays state action until after the hearing, nothing more. Worry about the bills, not the subpoenas.
Were I to be convinced there is a need for conflict of powers here, I would be more sympathetic to Judge Greer. But in any case, unlike some people, I am not squeamish about direct conflict of powers; that's the way balance of powers is supposed to work. It's better if it doesn't have to work that way, but sometimes it has to do so if we are to get clarity on where the lines are. Congress has a legitimate power to subpoena; state courts have legitimate power to issue injunctions. Congress issued a subpoena to Annie Santamaria, the director of the hospice, to appear before Congress with Theresa Schiavo, with all equipment relevant to her care remaining in the state of operation it was in when the subpoena was issued. It is a federal crime for Santamaria to fail to obey the subpoena, and it is, from what I understand, a federal crime to obstruct someone in the obeying of it; Greer has effectively issued an order for Santamaria to do so. In the next few weeks we will find out what becomes of state court judges who require people to ignore Congressional subpoenas.
[UPDATE: Two other cases that need also to be considered. (hat-tip: Kleiman.) I'm not convinced as some are, though, that there is any general inconsistency in people outraged about the Schiavo case not being outraged about these particular cases; I rather suspect they just don't know about it. The Schiavo case has been going on a long, long time, and it has taken most of that time for the case to occupy much public attention. The futile care law involved allows things to move very swiftly. It's rather odd, though, that the National Right to Life Committee, which opposes futile care laws, helped write this one, and is not calling attention to the results.)