Terri and executive power (Terri Schiavo and Executive Power)

Terri and executive power

March 22, 2005
David Quackenbush
Declaration Foundation & Declaration Alliance Senior Scholar

The case of Terri Schiavo is disturbing at a constitutional level, because -- although both the governor and the legislature have determined that court-ordered starvation contravenes Terri Schiavo's basic rights, given the circumstances -- yet many are acting as if the only word to be spoken on these deep constitutional matters is that uttered by the courts.

But this is a deep error regarding the nature of republican self-government.

Separation of powers

Have we forgotten that we have a separation of powers, that judicial orders are not self-effectuating, and that the other two branches have both a responsibility and an obligation to see that the Constitution is rightly respected?

Each branch has a responsibility to respect the Constitution and our nation's laws, but the executive has a particular responsibility to respect the Constitution and laws in the press of events as they occur.

Bear in mind that the judicial branch is concerned primarily with preserving justice -- the correspondence of our lives to the Constitution and the laws -- in the past. The judicial branch is primarily retrospective.

The legislative branch is concerned primarily with prospective justice -- conceiving and enacting laws that will perfect the society's pursuit of justice in the future.

But the executive is pre-eminently concerned with ensuring that the political community respects the law, the Constitution, and the fundamental principles of that Constitution, in the only moment that really exists -- the present. The executive acts, he does not judge what has been done, or consider what should be done in the future.

If the executive deems that something is occurring now -- whether by mandate of the court or not -- that violates that basic premises of the Constitution, he is bound by his oath to take action. Acting is what executives do.

The matter of Terri Schiavo

Right now, Terri Schindler-Schiavo is being deliberately starved. Thus, the Florida executive, Jeb Bush, is bound by his oath to act now in accordance with his conscientious understanding of what the Constitution and the laws of Florida require, because the judge in the case has no executive power.

We have forgotten that among the powers that are separated is the power of the execution of the law, reserved to the executive. The notion that judges' orders are self-executing is a dangerous notion that violates the whole understanding of the separation of powers.

There are reasons that the power of executing the law is restricted to one branch of the government. Among those reasons are considerations of efficiency and effectiveness. But above all, the power to act is concentrated in the executive so that the people can concentrate their vigilance on the executive.

The covert assumption of the executive power by the judiciary in the Schiavo case has become an ideal example of the judiciary's continuing assault on the moral sense and sensibility of our people, an assault that continues, in this case, in contravention of the will of the people as expressed in Florida in the state legislature, by the governor, now by the Congress of the United States.

With that in mind, Jeb Bush has the perfect right and obligation to act to prevent this violation of Terri Schindler-Schiavo's basic constitutional rights, and to do so in such a way as to prevent what amounts to judicially-mandated murder. And I hope that he will understand that responsibility and act, while the Congress and the legislature continue to take the steps that they can, to try to make sure that this does not continue.

The citizens of Florida, and of the United States, should support Governor Bush by encouraging him to exercise energetically his constitutional responsibility to take care that the laws be faithfully executed.

Judicial dictatorship

Unfortunately, in the Schiavo case, the judiciary has set its face against what the society, the people, the legislature, and the Governor believe is constitutional right. The question is, "Do the judges get to dictate, in an instance like this, what shall be our understanding of basic rights and moral requirements?"

The answer to that question is "no." No branch of government gets to dictate what the outcome will be, by itself, in America.

And in this particular case, with the other branches ranged against them, the judges actually have no power or authority, and it is the executive who can act. Governor Bush needs simply to intervene, to protect this woman's life, to look the court in the eye and say, as President Andrew Jackson did, "You've made your ruling. You enforce it." They can't enforce it, of course, because they have no executive power to do so.

When judges act in a way that contravenes the conscience of the executive, they forfeit the cooperation of the executive -- and that is how the Founders intended it to be. It is about time that the executive reasserted that truth of our constitutional system, and Florida would be a great place to start. The courts do not get to act like little tyrants, in this country.

We are supposed to have a system based on three equal branches, and yet what we are seeing in this case, as in many others, is a judicial dictatorship, where the will of the people as represented in the majority in the legislature, in the duly elected executive in the governorship, is having no efficacy whatsoever to protect the rights of this individual.

Keeping things in perspective

Some conservatives might be concerned about urging the executive to act against a court order, because of a laudable concern to limit executive power. But our Founders understood that the place to limit executive power was in its illicit exercise, not its essential and necessary exercise. As we contact our leaders in this case, it is very important to show understanding of the fact that we acknowledge that they have an independent responsibility under the Constitution of both Florida and the United States to act in defense of basic constitutional integrity and rights.

Conservatives must urge Jeb Bush to take action, so that Terri Schindler-Schiavo will not be starved to death by the courts, because he has sworn an oath to uphold the Constitution and laws of Florida. This woman has a positive right, under the Florida constitution, to defend her life, and that right is being utterly disregarded, and destroyed -- and Governor Bush knows it.

Given his oath as an executive, Governor Bush has a distinct and clear responsibility to defend Terri's constitutional rights in this case, regardless of whether any court is willing to do so, because he, as The Executive, is a separate and equal branch, and must be governed by his own will and conscience when it comes to his oath.

Governor Bush co-equal

The notion that the judge makes the law, and that whatever the judges say is the dictate that the rest of us must follow, does not apply to the other branches of government which are co-equal with the judiciary, and which can and must pass in review the judgments made by the judiciary, in order to see whether they pass constitutional muster.

Governor Bush obviously feels that the action of the Florida courts has not passed that muster, and should the federal court review likewise fail to do so, he has a duty to act, in order to defend what he believes to be the constitutional right in this case. And we, the people, ought to be contacting his office and letting him know that we support him in that duty.

Yet another Terri Schiavo thread, but this deals with the constitutional aspects and from a notable source.

I posted under "Constitution" because of the issues there as well as under "Government" and "Florida".

Admin Moderator can remove from topics if appropriate.

For those who are getting so emotional over Terri Schiavo, please allow for a good, informed discussion on this.

I think the author makes some good points that should be aired...

Interesting. It also leaves me breathless that the federal judge ignored the law Congress passed to do a de novo review, although I think judges can always decide whether or not to take a case. At this point I am hoping for a Roe v Wade decision from the Supremes that gets the government out of this entirely and rules that end of live decisions should be between a patient, his family, and his doc. No lawsuits.

But this order is not dependent on the Executive for action. If it were he could pardon Terri.

The only time in our history (AFAIK) that a President actually took action against to oppose a judgment of the Supreme Court was when Clinton perjured and manipulated the Paula Jones case after a unanimous Supreme Court said "respondent has a right to an orderly disposition of her claims"

He was rightly impeached.

From the article:

the judiciary has set its face against what the society, the people, the legislature, and the Governor believe is constitutional right.

G.Mason says:

And I think the author believes we have a democracy and are not a representative republic.

I strongly disagree. In the statement above, the elected representatives have voiced strong differences with the Judicial Branch. So have the people, but they only have say through their representatives.

We are supposed to be a government of We the People.

The representatives of the people (legislative and executive branches) have a responsibility to protect the people if the Judiciary is not abiding by the laws.

In this case, Judge Greer is acting as Guardian ab Litem as well as the fact the US Congress allowed the parents to have a new trial de novo.

Judiciary prudence dictates that the representatives of the people protect the rights of the people and enforce the laws.

So I just disagree that this is getting into a Democracy. If someone was lynching people in Tampa under Bishop Lynch [pun intended], then the Governor has the right to stop that, even if the courts consider that a good exercise of religious freedom.

And I think the author believes we have a democracy and are not a representative republic.

I don't think you are right. Where in the piece does he convey that impression?

The piece argues for the executive to be co-equal with the judiciary rather than subservient to it. The executive is, typically (depending on the state) elected by the people directly (but in some cases may not be). The executive of the nation is actually elected by the filtered votes of the people in the two-part process. None of this implies "democracy and not a representative republic". But, rather, both.

He is not arguing for all decisions to be made via popular referenda.

At this point I am hoping for a Roe v Wade decision from the Supremes that gets the government out of this entirely and rules that end of live decisions

At the US Supreme Court, where the Roe v Wade decision is stored, they are always finding it turned upside down on the bookself [overturning Roe v Wade symbolically].

Associates of Supreme Court Justice are being blamed for this...

I might add that it is high time that people in positions of authority, when given orders such as this by the courts, have a Moral Obligation to IGNORE THOSE ORDERS!

"I was just following orders" was not a defense in Nuremburg and it is no defense now.

The Police officers who are standing armed guard outside that hospital to prevent people from trying to feed her manually. The doctors and nurses who stood by and did NOTHING while that tube was removed, or actively participated in that procedure are just as guilty as Greer, Michael and Felos in this woman's murder.

People, keep in mind you have ZERO obligation to follow an illegal command from anyone in any position of authority. Murder by starvation IS an illegal order. Period.

The problem is the fact that this isn't a "Constitutional" issue. This is a state/federal law issue. The government is stepping in and virtually changing judicial review. They are trying to get the federal court to intervene in a case that falls rightfully under the jurisdiction of state court. In my opinion, this is an abuse of power, no matter what I think of her fate.

Global News Matrix

Like I stated, we think.

" Right now, Terri Schindler-Schiavo is being deliberately starved. Thus, the Florida executive, Jeb Bush, is bound by his oath to act now in accordance with his conscientious understanding of what the Constitution and the laws of Florida require, because the judge in the case has no executive power."

I don't see the governor storming the hospice walls.

Do you think he is acting "in accordance with his conscientious understanding of what the Constitution and the laws of Florida require"?

Do you think he is acting "in accordance with his conscientious understanding of what the Constitution and the laws of Florida require"?

I may be wrong, but if the governor knows of problems that require marshall law declared and the Natioanl Guard to go in or the State Police, he has the authority and must act.

I am not sure why the Governor or the President do not intervene to protect an innocent life from an erratic judge [at least my opinion].

The executive branch has an obligation. Sort of like a policeman standing by and watching a young lady being gunned down in front of his eyes and doing nothing...

I just sent the following email to Governor Bush:

Dear Governor Bush:

Sir, it is my belief that as "Chief Magistrate" of the State of Florida, you have the moral/Biblical authority to act in an extraordinary fashion, outside of what is currently thought to be your powers, to rescue the life of Terri Schiavo.

The Judical Branch of Government has become too detached from reality and is out of control. They no longer practice the "Rule of Law" but instead the "Rule of Lawyers." Here you not only have a moral obligation under God to act, but a constitutional one to restore balance to the three branches. Extreme circumstances call for extreme action.

You will, of course, be lambasted and vilified for doing this, but you will be right in the eyes of God. I think that matters to you. I also think that in time, after the dust settles and the facts fully reported, you will eventually have the gratitude of your countrymen.

I am therefore pleading with you to use Executive Power and order law enforcement personnel under your control to take Terri Schiavo into protective custody, to sustain her life, in defiance of the courts. I know this is a difficult thing to do, but I think you are up to it.

With respect and prayers to sustain you,

Name withheld(here)
Midwest City, OK

P.S. I also think you should call upon the President of the United States to also exercise extraordinary executive power. The Judiciary has ignored the intent of the Congress of the United States and President. This must end.

Excerpt from artice...

" ... an assault that continues, in this case, in contravention of the will of the people as expressed in Florida in the state legislature, by the governor, now by the Congress of the United States."

What has the Florida legislature expressed in this case?

The family from both sides went to the judiciary to interpret the laws and the laws were interpreted accordingly. It is unfortunate that the side that disagrees with the rulings they sought, is not willing to accept the decisions because it wasn't ruled in their favor.
So now they blame the judicial system who are just doing their job of interpreting the laws as written.
It is unfortunate that society thinks they have to take issues all the way to the Supreme Courts and still cannot accept the laws of the land.
It is not the job of the judiciary to appease people with agendas, but in some recent cases it appears that indeed is the case. But does that make the judiciary corrupt as a whole? I don't believe so. However it is easy to point out a handful of rulings from various Circuits and assume the entire process is corrupt. This court has ruled on individual rights as opposed to states rights. And generally the court will always favor the individual right and not the right of the collective. Agree or disagree, someone will always be upset with a ruling and that is the way it always will be.

The pressure placed upon the Judiciary has to be immense and I wouldn't want the job. The Judiciary is not a popularity contest.

The only time in our history (AFAIK) that a President actually took action against to oppose a judgment of the Supreme Court was when Clinton perjured and manipulated the Paula Jones case

You are overlooking Andrew Jackson's actions in opposition to the ruling of the Supreme Court with regard to the Indian removal from Northern Georgia.

Global News Matrix

You have a bad link here.

But my question is if the state judge is acting improperly [according to some reports, by being the Guardian ab Litem and the Judge of report, this violates Florida law].

The other really odd thing about this case is the Judge is blind, so taking on two roles is really not in the interest of the person he is concerned [Justice is blind takes on a new meaning with Judge George Greer].

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