Undue Process: Congressional Referral and Judicial Resistance in the Schiavo Controversy

Abstract:     
The congressional response to the Schiavo controversy was both extraordinary and feeble. Without touching substantive law, Congress essentially offered Schiavo's parents a referral to a federal court for more process. Was the statute constitutional? In this brief essay, I conclude that the answer is probably "yes." Reaching this conclusion, however, necessitates an investigation into when too much process is a constitutional problem. Everyone understands that decision costs are a concern for good policy makers, but when if ever should judges invoke the Constitution to end prolonged handwringing? The law literature is silent on that question. This essay concludes with a first effort to analyze the problem. It identifies a few locations where decision costs are capped by constitutional text or judicial precedent; marks limits on any Dworkinian rights-based argument against process; and reviews the incentives and trade-offs suggested by utilitarian theories of institutional choice and design.

Keywords: Schiavo, due process, undue process, fundamental rights, institutional design

Working Paper Series