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.

[mikeus_maximus]

This is basically what I discussed with my wife this morning. Jeb Bush has the power. Right now he's having to chose between a skewering by the media and probable political suicide, vs. doing what's right and conscienable.

Let's hope he decides correctly... and soon.

[Dr. Frank fan]

What has the Florida legislature expressed in this case?

It expressed a wish that the Governor of Florida be empowered to sign an executive order requiring re-insertion of Terri's feeding tube. The law was popularly known as "Terri's Law", try Google.

[topher]

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.

This decision is much more famous than one that Clinton was involved in.

There is some historical quote to the effect of Jackson saying to the US Supreme Court "Let them try to enforce it" referring to the decision.

Gold was found on Indian land in Georgia was part of it, but the other part was that the Indians sided with the British in the War of 1812, which Jackson fought in.

Moving the Indians was thought to be in the best interests of the nation -- especially after the Indians joined with the British in the War of 1812.

[G.Mason]

" ... but if the governor knows ... "

Are you serious?

" ... he has the authority and must act ... "

This is your edict?

[Dr. Frank fan]

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.

Then you must have a problem with the U.S. Constitution, which allows for Congress to establish courts and set their jurisdictions.

[topher]

Let's hope he decides correctly... and soon.

He is not running for re-election in 2006 and he does not want to be President. Of course, he could run for the US Senate seat in Florida...

Those might be the political considerations.

But I agree -- let him do what is right. We need someone in poltical office with the cahunas to do the right thing.

It took a lot more courage to invade Iraq than to save this woman's life.

[grassboots.org]

At this point I am hoping for a Roe v Wade decision from the Supremes that gets the government out of this entirely Both the decision you ask for and Roe v Wade have brought bloodshed by decree. It was wrong then and would be wrong now. The first freedom is life.

[MatrixMetaphore]

I'm not sure the state judge was acting improperly. I have not read any reports stating that. Please link to them if you can. I've read posts on how this case is violating Florida Law. I'm not sure that is correct. I'll have to do more research, but it's my understanding that under marriage law, Michael Schiavo is acting within his rights. Again, it matters now if I agree or disagree with his decision. I'll do some research to see if I can validate the claim though.

Global News Matrix

[topher]

This is your edict?

I have made it simple. If a policeman stands by while an innocent woman is murdered, what sort of a policeman is he?

In a sense, Jeb is that policeman who must act to prevent the murder. Pretty black and white...

[watchdog_writer]

Here is Judge Ed Carnes of the 11th Circuit panel saying:

"... if Alabama Chief Justice Roy Moore's Ten Commandments monument were allowed to stand, it would mean a massive revision of how the courts have interpreted the First Amendment for years."

This leftist judge decided not to consider Terri's case.

[G.Mason]

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.

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

The question is ... why not?

[topher]

I'm not sure the state judge was acting improperly. I have not read any reports stating that. Please link to them if you can.

This has been stated, but finding the thread and post will take time. If I can find it, I will post, but I can't promise it will appear in the next 48 hours...

But the only point I wish to make is that videos of Terri were used as evidence, and the New York Times has posted an article about the horrible eyesight of Judge Greer -- so bad he cannot drive.

But I am not sure if he is or is not legally blind.

[Catspaw]

Advocating anarchy--such an interesting concept to find on FR.

[MatrixMetaphore]

Personally I think the government is taking the First Amendment to far. If you read it, it states that there can be no government appointed religion. No "national standard". It doesn't say there needs to be a full separation of church and state. Just that each religion is treated equally.

The government was founded on the Catholic (or similar) basis. This is why they display such symbols. They aren't stating, however, that Catholicism is the "national religion".

Global News Matrix

[topher]

Advocating anarchy--such an interesting concept to find on FR.

It is not the first time in America -- 1776 and the Rebellion against a king in England.

And then there was a discussion about things after President Abraham Lincoln was made President -- the bloodiest war in American history [the Civil War].

In the latter [Civil War], both sides thought they were right and were willing to die for their cause.

Folks who have fought in the Military I have respect for. They probably have seen death, and sometimes because of really stupid decisions and sometimes they have also seen very courageous things done.

[topher]

Advocating anarchy--such an interesting concept to find on FR.

It is not the first time in America -- 1776 and the Rebellion against a king in England.

And then there was a discussion about things after President Abraham Lincoln was made President -- the bloodiest war in American history [the Civil War].

In the latter [Civil War], both sides thought they were right and were willing to die for their cause.

Folks who have fought in the Military I have respect for. They probably have seen death, and sometimes because of really stupid decisions and sometimes they have also seen very courageous things done.

[Dr. Frank fan]

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.

Yeah, everyone has a duty to accept injustice, all the time.

So now they blame the judicial system who are just doing their job of interpreting the laws as written.

And courts interpret laws infallibly, all the time.

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.

Actually, you're right, it is unfortunate that the public sees the judiciary as the only option, and the Supreme Court as the last word, rather than seeing the executive and legislature as co-equal branches.

It is not the job of the judiciary to appease people with agendas,

No but it is their job to serve justice. Violating Terri Schiavo's right to life does not, any way you slice it. If you like let me just point to the 14th amendment. No judge can rationally explain why her 14th amendment rights are not being violated in this case.

However it is easy to point out a handful of rulings from various Circuits and assume the entire process is corrupt

True, and it's easier when there's an entire pattern rather than a random handful.

This court has ruled on individual rights as opposed to states rights.

My, what a totally NOT superficial summary of this case! You should have an opinion column.

The court has "ruled on" "individual rights"? yes, I suppose that's true. They have ruled that Terri Schiavo, the individual, lacks the right to life, and meanwhile, Michael Schiavo, a different individual, has the right to make her dead if he wants.

That what you meant?

And generally the court will always favor the individual right and not the right of the collective.

except in this case, where the "collective" is deciding that an individual should die.

Agree or disagree, someone will always be upset with a ruling and that is the way it always will be.

Brilliant observation, really. But this gets us nowhere. You're right that someone will always be upset with a ruling. And? someone was upset with the Dred Scott decision. Someone was upset with the Bush v. Gore decision. Someone was upset with their decision overturning laws against flag-burning. and so it goes. None of this tells us anything about whether any of those respective decisions were right or wrong, just or unjust.

Nor does it refute the point of the author above, which is that the executive branch is co-equal with the judicial branch, not subservient to it.

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

Actually it kinda is. Except, usually to win this contest you don't (generally) have to be "popular" among the American public, but rather, among the members of the ABA and various left-wing opinion leaders and Congressmen.

Look at Bush's recent appointees... not popular among lefties and ABA types, therefore Boxer & friends are blocking them.

Unless, of course, the majority in the legislature too asserts its power.

[topher]

Advocating anarchy--such an interesting concept to find on FR.

It is not the first time in America -- 1776 and the Rebellion against a king in England.

And then there was a discussion about things after President Abraham Lincoln was made President -- the bloodiest war in American history [the Civil War].

In the latter [Civil War], both sides thought they were right and were willing to die for their cause.

Folks who have fought in the Military I have respect for. They probably have seen death, and sometimes because of really stupid decisions and sometimes they have also seen very courageous things done.

[MatrixMetaphore]

I'm not sure if you can make a ruling on the video tapes anyways. First, they could be redacted. Second, they could depict her in a state she wasn't "actually" in. The doctors on record for the court used ONLY the tapes as a manner to review her condition. This is, to say the least, insufficient to perform an adequate diagnosis.

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.

Global News Matrix

[G.Mason]

" In a sense, Jeb is that policeman who must act to prevent the murder. Pretty black and white..."

Again, by whose edict?

Let me ask you this. Do you think Governor Bush knows more about this situation than you, or I?

Do you think Governor Bush should make decisions, he was elected to make, based on the laws, his personal feelings, or the feelings of many who may, or may not know all the facts?