Terri and executive power (Terri Schiavo and Executive Power)

RenewAmerica.US ^ | March 22, 2005 | David Quackenbush

[topher]

http://www.renewamerica.us/news/050322quackenbush.htm

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.

CALL GOV. BUSH at 850-488-4441, or e-mail him by clicking here.

[codercpc]

Murder by starvation IS an illegal order. Period.

Not according to the courts of Florida.

Your argument (that the police should not enforce the law), is as stupid as the Anti -War activists saying that our soldiers are no better than the SS in WWII. These Anti -War activists believe just as passionately as you do that the war is "illegal" (no I am putting absolutely no credence in that argument, of course the war was legal) as you do that the order to remove the feeding tube from Terri is somehow illegal.

Unfortunately, every court that has reviewed it doesn't believe that removing a tube is illegal. Just as I believe that abortion is murder, it's obvious that the courts don't agree with me.

My heart bleeds for Terri, but the hyperbole at this site has become unbelievable. I never thought that the day would come when I would go to Free Republic and see a poll that states they want our President to do something, even if it is against the law, to protect one person. Although we each have the right to life, liberty, and the pursuit of happiness, we must never take knee jerk reactions that threatens the rest of the Constitution!

[Dr. Frank fan]

It isn't a matter for me to Google. You made a statement, I asked you what the legistature did. Should you wish to circumvent the discussion, by all means do so.

What on earth are you talking about? circumvent?

Again, you bolded the article's statement that the judiciary is in contradiction with the executive/legislature. You asked me, of all people, what the legislature has done about it. I told you. They passed a law explicitly endorsing the notion of the Governor of Florida ordering her life saved by executive order. That's the answer. That doesn't "circumvent" your question, it answers it, unless your question had some subtle meaning I am missing.

The point is that the governor has not stormed the hospice care provider in Largo and taken custody of Terri.

That is true. Wow, good point!

um, that's what the article is saying. That the governor has the power to save her life, and should, but is not. We all agree about that, then, apparently.

The question is ... why not?

I dunno. He's afeard, I reckon.

Any other questions?

[agrace]

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].

Really? I get a smug satisfaction from that little anecdote, thanks for sharing.

[G.Mason]

"If necessary yes"

It has become painfully apparent it is necessary.

When will you begin?

[MatrixMetaphore]

I think Jeb knows the facts as best he can. The problem is he is powerless right now, and so is the president. There seems to be a misconception that a pardon could be initiated. This is incorrect, because Terri was never "sentenced" to death.

Also, to comment on the post regarding initiating martial law, I think this is a terrible idea. It will create a precedence for anyone who the government feels deserves an "alternate" fate.

Global News Matrix

[agrace]

Welcome to FR. What about the supremacy clause? What if the state actions are violating her civil rights - cruel and unusual punishment, equal protection etc. Why is it constitutional to require federal review for capital punishment cases but not for this case?

[topher]

Really? I get a smug satisfaction from that little anecdote, thanks for sharing.

I also get a satisfaction thinking about that as well...

[grassboots.org]

I'm not sure if you can make a ruling on the video tapes anyways. First, they could be redacted. Some of the taping was court-ordered. The balloon tape was made by the court-appointed doctor (who by the way testified she is a PVS after talking to Terri telling her what a good job she was doing following the balloon.

[MatrixMetaphore]

Please don't make the mistake in assuming I agree with what's happening to her. I think she should live, be divorced, and stay with her parents. What I don't agree with is the "circus" this has turned into. My problems surpass her case, and fall directly on the government. I don't agree with the actions of the government, because I don't recognize their authority in this situation.

GlobalNewsMatrix

[Law]

When you call Gov. Bush, ask about the following:

I did a google search on "Florida law adultery criminal" and found a web site that claims that under section 798.01 of the Florida code that:

"Whoever lives in an open state of adultery shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083." Reportedly, punishment for a misdemeanor of the second degree can be up to 60 days imprisonment.

If Jeb Bush really wants to help Terri, why doesn't he direct Florida law enforcement to arrest Michael Shiavo under this standard and while he is in jail (even overnight before the bail hearing) have, or petition to have, a new guardian appointed, perhaps on the basis that Michael can't do the job in jail or must be replaced because of the criminal charges?

I don't know how new guardians are chosen but would think her parents are the logical alternative and they would direct her to be fed and given water again.

[G.Mason]

"They passed a law explicitly endorsing the notion of the Governor of Florida ordering her life saved by executive order."

So the legislature explicitly endorsed the notion of the governor, ordering her life saved by executive order.

That's nice.

It would seem the the governor is not taking the notion to heart.

I guess my next question (thanks for asking) would be ... what's next, or would you rather I Google?

[topher]

It's been said that that the doctor(s) should be brought up on charges and perhaps lose their medical licenses. I'm not sure I disagree.

It may have been a stacked deck -- Attorney George Felos was the Chairman of the Board of the hospice [and the business that runs it] in 1998 to 1999 [maybe 2000]. About the time Terri was admitted, he was ONLY a director.

I think they used testimonies from the hospice, which might imply Attorney Felos has some control over.

The stories of three nurses are very interesting -- the who left yesterday was very upset about what was going on [Nora].

But I think there is a link that may help you... I will just post that link after reading it.

[ElectionTracker]

Eh, I think there should be a Constitutional Amendment removing the judiciary as a branch of government and instead only allowing judges to preside over civil and criminal cases. I can't think of a single way in which the judiciary has ever improved anything.

[mrsmith]

Jackson didn't take any action. He just did nothing.
Clinton took action to defy the court.

If Bush does nothing, like Jackson, the order is carried out anyway.

[G.Mason]

" ... The problem is he is powerless right now ... "

Not according to the very "reputable" David Quackenbush.

Hmmmm ... whom to believe.

[GarySpFc]

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.

Today we are governed by a judicial oligrachy which believes in murder by due process of the law.

[agrace]

I wasn't assuming anything other than that you may have the knowledge to lend me some insight into my questions. Why don't you recognize the govt's authority? And to repeat, what about the supremacy clause, etc? Any thoughts?

[MatrixMetaphore]

If they do that, there will be no authority to change anything outside of "breaking the law". That's not an option.

Global News Matrix

[ElectionTracker]

"Murder by starvation IS an illegal order. Period.

Not according to the courts of Florida.

Your argument (that the police should not enforce the law), is as stupid as the Anti -War activists saying that our soldiers are no better than the SS in WWII. These Anti -War activists believe just as passionately as you do that the war is "illegal" (no I am putting absolutely no credence in that argument, of course the war was legal) as you do that the order to remove the feeding tube from Terri is somehow illegal.

Unfortunately, every court that has reviewed it doesn't believe that removing a tube is illegal. Just as I believe that abortion is murder, it's obvious that the courts don't agree with me.

My heart bleeds for Terri, but the hyperbole at this site has become unbelievable. I never thought that the day would come when I would go to Free Republic and see a poll that states they want our President to do something, even if it is against the law, to protect one person. Although we each have the right to life, liberty, and the pursuit of happiness, we must never take knee jerk reactions that threatens the rest of the Constitution!"

Murder is illegal. The courts have no right to rule rewrite the law so that someone can be murdered. If it takes executive action to get courts back in line, good. Anything involving elected officials is better than activist judges changing the law at whim. Hopefully, this will pave the way for the elected branches to ignore the unconstitutional principle of "judicial overview" altogether. IMO, if the court refuses to follow the law, the executive branch should ignore it and enforce the law on its own. Rule of Law is better than Rule of Permanent-Oligarch Judges.

[ex 98C MI Dude]

You and I are of the same mind on this.

If we allow a woman who has committed no crime to be willfully murdered, then we don't have far to go to be at the gates of hell. If the law allows this, then the law has become so perverted that the meaning, the very foundations, of this nation have crumbled.