Now that Ive had five people tell me all I have to do is go to a website and read two letters written by lawyers hired by the parents to understand that Jeb can save her life, Im convinced that none of you understand the arguments made by the lawyers or you could have explained it in one or two sentences. Since you cant explain it, I take it its all wishful thinking on your part, just like her communicating.
SUBJECT: TERRI SCHINDLER-SCHIAVO
DATE: OCTOBER 15, 2003
In response to a request, this memorandum is submitted addressing whether the governor of the State of Florida has the constitutional power to stop a Florida court order conferring upon the husband of Terri Schindler-Schiavo the sole discretionary power to disconnect his brain-disabled wife’s feeding tube. Not only does the governor have such power, but the governor has a constitutional duty to prevent any action taken pursuant to such a court order, because such action would violate Ms. Schindler-Shiavo’s constitutionally guaranteed “inalienable right to enjoy and defend life” regardless of her “physical disability” as secured by Article I, Section 2 of the Florida State Constitution.
According to Article I, Section 2, “[a]ll natural persons, female and male alike, are equal before the law, and have inalienable rights, among which are the right to enjoy and defend life ....” Additionally, Article I, Section 2 provides that “no person shall be deprived of any right [including the right to enjoy life] because of ... physical disability.” According to Article IV, Section 1, “the supreme executive power” of the state of Florida is vested in the “governor ... who shall take care that the laws be faithfully executed.” Thus, the governor has the power, indeed the duty, to ensure that this constitutional guarantee of the “inalienable right ... to enjoy and defend life,” regardless of physical disability, is preserved.
In the exercise of this his “take care” powers, the governor is not bound by a court order, such as the one in the Schindler-Schiavo case, when that court order is inconsistent with the actual constitutional guarantee. As President Andrew Jackson once observed, judicial “precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power.” This observation is especially significant in determining the scope of the constitutional powers of the office of governor, a separate and independent branch from the judiciary. Again, as President Jackson put it, the chief executive officer of a government is bound by his oath of office to decide matters of constitutional right and power according to the executive’s interpretation of the constitution, not according to the judiciary’s interpretation. Therefore, if the governor believes that Ms. Schindler-Schiavo has the constitutional right to “enjoy life” regardless of her present disability, as he has stated in filings submitted to the courts, then the governor is duty bound to stop any action taken pursuant to that unconstitutional order that would result in the deprivation of Ms. Schindler-Shiavo’s constitutional right to life.
Such executive intervention into the judicial processes does not violate the separation of powers. To the contrary, as Alexander Hamilton stated in Federalist No. 78, the exercise of judicial power is subject to the check and balance of the executive branch which, alone, has the power to enforce a judicial order. Thus, if a court order is contrary to the law of the inalienable right to life — as the order in the Schindler-Schiavo case surely is — then according to Article IV, Section 1 of the Florida Constitution, the governor, vested with the “supreme executive power,” should intervene to stop any action taken puruant to that court order. After all, as the great English legal authority — Sir William Blackstone stated — a court opinion or order and the law are not the same thing, in that a court opinion or order may be contrary to law, and therefore, not law at all. I W. Blackstone, Commentaries on the Laws of England 71 (Univ. Chi. Facs. Ed: 1765). If the governor allows a court order granting discretion to one person to decide for another person whether the latter person lives or dies to go unchallenged, then he would fail to “take care” that the “law” of the equal right to life, as secured by Article I, Section 2 of the Florida Constitution even for the physically disabled,” is “faithfully executed.”
Wow, you're a real piece of work.
I'd hardly characterize the document from the Thomas More Law Center as "lawyers hired by the parents" when the fact is that the Governor ASKED them to advise him on his rights in this case.
So you'd like a non-lawyer to interpret what lawyers wrote?
It's a very busy day for me, and for others, too. We would rather devote our free time to promoting Terri's cause with the politicians and media. Forgive us if we don't have time to go over everything for you.
I'll probably be wrong...but I'll make an attempt on some of the points
1. Bush waited until Mike took the steps to starve Terri, Bush can step in. Bush would not be interfering with a court but with the private action by Mike. (Brian Fahling)
2. Bush's obligation is to uphold Florida Law, not to uphold court decisions.
3. (From Jack Thompson) Governor, you have the power, by the mere stroke of a pen, to prohibit what is, in every sense, the execution of Terri Schiavo by a means that is both cruel and unusual in violation of Article I, Section 17 of the Florida Constitution and the Eighth Amendment to the United States Constitution.
Death by dehydration and starvation is arguably the most brutal, inhumane, and pain-inducing way to kill any living creature. The United States Department of Agriculture in its own regulations at 9CFR2.131 prohibits the withholding of food and water from farm animals. Terri Schiavo is not less than a farm animal.
[snip] No judge has the power to elevate the judicial branch over the executive branch thereby abrogating your state and federal constitutional duties and powers.
John B. Thompson, Attorney 1172 South Dixie Highway, Suite 111
Coral Gables, Florida 33146-2750
October 16, 2003
The Honorable Jeb Bush Governor, State of Florida C/o Governor's General Counsel,
The Capitol Tallahassee, Florida Via Fax to 850-488-98
Re: Execution of Terri Schiavo is “Cruel and Unusual Punishment”
Dear Governor Bush:
I have been asked by the family of Terri Schiavo to do what I can to save her life in light of your request yesterday for assistance from legal counsel inside and outside your Administration toward that end.
Governor, you have the power, by the mere stroke of a pen, to prohibit what is, in every sense, the execution of Terri Schiavo by a means that is both cruel and unusual in violation of Article I, Section 17 of the Florida Constitution and the Eighth Amendment to the United States Constitution.
Death by dehydration and starvation is arguably the most brutal, inhumane, and pain-inducing way to kill any living creature. The United States Department of Agriculture in its own regulations at 9CFR2.131 prohibits the withholding of food and water from farm animals. Terri Schiavo is not less than a farm animal. If you, as Governor, were to order the execution of a serial killer on death row by means of withholding food and water, you would be ordered by any number of courts not to do so. The horror of dying by dehydration makes death by electric chair, by comparison, an act of compassion.
The fact that this woman is neither accused nor convicted of any crime makes absolutely no difference. In fact, the lack of criminality makes the execution even more cruel and unusual, for a criminal sanction is being imposed upon an innocent woman.
You have the power and the duty, under both the Florida and United States Constitutions, which you took an oath to uphold, to enter an Executive Order, today, to prohibit the imposition of any cruel and unusual punishment in this State. Upon entering such an Order, you then have the power, right, and duty to give force to that order by dispatching state law enforcement officials to take custody of Terri Schiavo and stop her forced starvation and dehydration.
Governor Bush, you do not need a court order to do any of this. No court at any level has the power to revoke the Florida and United States Constitutions. They cannot revoke your oath of office. You are an enthusiast of the James Madison Institute, and as such you know that the Executive branch of government is co-equal with the other two branches. No judge has the power to elevate the judicial branch over the executive branch thereby abrogating your state and federal constitutional duties and powers.
On behalf of the family of this innocent woman, and with all respect for the responsibilities of your office, we ask that you act immediately.
Respectfully, Jack Thompson
To: Christa Calamas, Esq.
From: Brian Fahling, Esq.
Re: Authority of Governor Bush to Issue Executive
Order Date: October 16, 2003
Question 1: Does Governor Bush have authority to issue an executive order pursuant to Section 943.04(2)(a), Florida Statutes (2002) to order the Department of Criminal Justice Investigations and Forensic Science to conduct an investigation of an alleged violation of Section 782.08 Florida Statutes (assisted suicide)?
Question 2: Would such an order under the circumstances of the present case constitute an intrusion of the executive branch into, or create a conflict with, the lawful authority of the judicial branch?
DISCUSSION
I. Authority To Issue Executive Order The governor of the State of Florida possesses authority under the Florida Constitution, Article IV, Section 1(a), to see that the laws are faithfully executed. Section 943.04 authorizes the governor, upon written order, to direct the Department of Criminal Justice Investigations and Forensic Science (“Department”) to “investigate violations of any of the criminal laws of the state.” In Thompson v. State, 342 So.2d 52 (Fla. 1976), the Florida Supreme Court upheld the authority given to the governor under Section 943.04, saying “[t]he power to see that laws are faithfully executed, which is essentially what Chapter 943 is designed to achieve, derives from Article IV, Section 1(a) of the Florida Constitution.” Thompson at 55.
The brief filed by the Governor in the Middle District of Florida sets forth significant reasons to believe that Section 782.02 is being violated because “Terri’s right to life is violated by the state when the state, acting as her guardian, assumes that her wish to live without artificial sustenance is the same as a wish not to be fed at all. The state has an ‘unqualified’ interest in life.” Brief at 5. Moreover, Terri is being denied oral sustenance, which creates “an unnecessary conflict with Florida Statutory law by implying that physicians may cooperate with a person’s alleged express wish not to feed herself . . . .” Id. at p. 6. law
The laws of the State of Florida, then, as set forth in the Governor’s brief, are not being faithfully executed. The authority of the governor to issue an executive order in this case is consonant with his duty to see that the laws are faithfully executed.
II. An Executive Order Does Not Impugn the Authority of the Court
The trial court order merely authorized Terri’s husband to direct that oral sustenance be denied her. An executive order that orders an investigation in this matter, with the concomitant appropriate actions that would be taken if a violation of Section 782.08 is found, does nothing to impugn the authority of the court. The executive order would ultimately operate only upon the husband’s decision which he is merely permitted to make. It is interference with private discretion, not with judicial authority. If the consequences of the husband’s exercise of discretion are determined to result in the unlawful taking of life, it is entirely appropriate that such actions be interdicted by law enforcement at the direction of the governor.
MEMORANDUM
TO: CHRISTA CALAMAS
FROM: HERBERT W. TITUS, ATTORNEY-AT-LAW TROY A. TITUS, P.C.
2400 CAROLINA ROAD CHESAPEAKE, VIRGINIA 23322
SUBJECT: TERRI SCHINDLER-SCHIAVO
DATE: OCTOBER 15, 2003
In response to a request, this memorandum is submitted addressing whether the governor of the State of Florida has the constitutional power to stop a Florida court order conferring upon the husband of Terri Schindler-Schiavo the sole discretionary power to disconnect his brain-disabled wife’s feeding tube. Not only does the governor have such power, but the governor has a constitutional duty to prevent any action taken pursuant to such a court order, because such action would violate Ms. Schindler-Shiavo’s constitutionally guaranteed “inalienable right to enjoy and defend life” regardless of her “physical disability” as secured by Article I, Section 2 of the Florida State Constitution.
According to Article I, Section 2, “[a]ll natural persons, female and male alike, are equal before the law, and have inalienable rights, among which are the right to enjoy and defend life ....” Additionally, Article I, Section 2 provides that “no person shall be deprived of any right [including the right to enjoy life] because of ... physical disability.” According to Article IV, Section 1, “the supreme executive power” of the state of Florida is vested in the “governor ... who shall take care that the laws be faithfully executed.” Thus, the governor has the power, indeed the duty, to ensure that this constitutional guarantee of the “inalienable right ... to enjoy and defend life,” regardless of physical disability, is preserved.
In the exercise of this his “take care” powers, the governor is not bound by a court order, such as the one in the Schindler-Schiavo case, when that court order is inconsistent with the actual constitutional guarantee. As President Andrew Jackson once observed, judicial “precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power.” This observation is especially significant in determining the scope of the constitutional powers of the office of governor, a separate and independent branch from the judiciary. Again, as President Jackson put it, the chief executive officer of a government is bound by his oath of office to decide matters of constitutional right and power according to the executive’s interpretation of the constitution, not according to the judiciary’s interpretation.
Therefore, if the governor believes that Ms. Schindler-Schiavo has the constitutional right to “enjoy life” regardless of her present disability, as he has stated in filings submitted to the courts, then the governor is duty bound to stop any action taken pursuant to that unconstitutional order that would result in the deprivation of Ms. Schindler-Shiavo’s constitutional right to life.
Such executive intervention into the judicial processes does not violate the separation of powers. To the contrary, as Alexander Hamilton stated in Federalist No. 78, the exercise of judicial power is subject to the check and balance of the executive branch which, alone, has the power to enforce a judicial order.
Thus, if a court order is contrary to the law of the inalienable right to life — as the order in the Schindler-Schiavo case surely is — then according to Article IV, Section 1 of the Florida Constitution, the governor, vested with the “supreme executive power,” should intervene to stop any action taken puruant to that court order. After all, as the great English legal authority — Sir William Blackstone stated — a court opinion or order and the law are not the same thing, in that a court opinion or order may be contrary to law, and therefore, not law at all. I W. Blackstone, Commentaries on the Laws of England 71 (Univ. Chi. Facs. Ed: 1765).
If the governor allows a court order granting discretion to one person to decide for another person whether the latter person lives or dies to go unchallenged, then he would fail to “take care” that the “law” of the equal right to life, as secured by Article I, Section 2 of the Florida Constitution even for the physically disabled,” is “faithfully executed.”