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.

[monkeywrench]

How so? I can't see anything more dangerous than exchanging the Constitutional right to life with the humanist right to die. This has been done before. They "give" us civil rights and human rights, which take the place of Constitutional rights.

[MatrixMetaphore]

Do you not see that this will set up a premise where if a mother/father and spouse disagree on the fate of the person in question, the government can intervene at any point? What if your wife was near death, and the only thing keeping her alive was a respirator? She would surely die without it, but her parents want to keep her alive, despite the fact she won't recover. As her husband, you have the final say of what happens. Do you want a court to take that away? And before you say "this is different", let me assure you that I know. I'm making a point, though.

[over3Owithabrain]

Most husbands aren't trying to murder their wife.

[agrace]

Thank you. That's very concise and helpful for this layman (er, woman). So how come state-convicted death penalty inmates get federal review?

Any idea whether there any precedent where the Supreme Court found a state law in violation of federally protected civil rights and therefore unconstitutional?

In fact, didn't they just do this in their ruling about juvenile death row convicts?

[MatrixMetaphore]

Again, I'm not agreeing with this. But I worry about the ramifications. The law doesn't see him as killing his wife either. So this will haunt us for a long time.

[Sola Veritas]

"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!"

The constitution has stopped working. It needs to be made to work again. Regardless of sophistry I have read here, the judiciary is out of control. The only immediate remedy is for strong executive action. No doubt, this will cause upheaval. However, I am confident that after the dust settles, the balance intended by the constitution will be restored. We will again have "rule of law" instead of the current "rule of lawyers."

I was greatly heartened to see that the majority of fellow Freepers agreed with me that "Extraordinary Executive Action" is appropriate. This tells me that we are not far from restoring the republic to what it should be. Your choice is simple. Join us and help keep things in control, or fight against and really cause a mess.

[PistolPaknMama]

Awesome article, actually. Thanks for posting this.

[monkeywrench]

The court is taking that away at this moment by upholding Terri's man given "right to die". It's already a done deal.

[MatrixMetaphore]

My guess is that the federal government, having its own laws on capital punishment, reviews the case because of the supremacy clause.

[MatrixMetaphore]

The court is not taking away Michael's right to decide the fate of his wife. He's pushing for this. So I don't understand your comment.

[G.Mason]

You are a good man of well intentioned ideals, I am sure.

May I ask you, how many times will Terri be subjected to the removal of sufficient care necessary to remain alive?

Is this the very last time? Or will she have to endure this, on and off, until it is long enough to kill her.

[Future Useless Eater]

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.

Absolutely and if that is the case then it's past time for a house cleaning. The Judges need to go, the Pols who allowed this to continue need to go and the lawyers who support them both need to be used to create an artificial reef at the bottom of some very deep ocean.

I'm with both of you

[agrace]

My guess is that the federal government, having its own laws on capital punishment, reviews the case because of the supremacy clause.

Reviews which case, you mean the juvenile death row issue? I thought of another example, if you'll indulge one more question. What was the federal jurisdiction of the justice dept when it decided to prosecute the Rodney King cops for violating his civil rights?

I found this regarding that case -

In some instances, however, it is because of another factor - such as apparent racial bias. For instance, the verdict in the first, State trial of the police officers charged with beating Rodney King is thought by many to have been based not on the evidence, but on bias. And in such cases, a second, federal trial may be warranted, so that a jury can fairly consider the evidence.

With that in mind, why couldn't the justice dept decide to investigate based on bias charges?

I'm not expecting you to have all the answers (what a first day you're having on FR!), but you sound of a legal mind, at least moreso than myself, so thanks for the dialogue. You said in a later post to someone else -

Again, I'm not agreeing with this. But I worry about the ramifications. The law doesn't see him as killing his wife either. So this will haunt us for a long time.

That's what I've been thinking also. These rulings set a dangerous precedent. It was bad enough for the state of FL, but it may turn out that forcing the federal courts to address it as well just made it that much worse.

[MatrixMetaphore]

I'm enjoying the conversation as well, so no need to apologize for the questions. You're actually making me thing haha! Anyway, my guess is that the case you quoted was bias on race discrimination. Obviously that's not the case with Terri Schiavo.

Yes, the juvenile death row issue is what I was referring to. The federal government has its own laws and statutes regarding capital punishment. My guess is that the juvenile matter was in question on both levels, therefore the Supreme Court heard the case.

Florida law does not see the removal of an assisted living measure as "murder". In fact, to my knowledge, neither does federal law. With that in mind, this case will change that so essentially the federal government WILL view this as murder.

This is where I am worried because there will be case law supporting a third party's right to change the power of attorney relationship. Also, this could in face set new standards for life support. How many have living wills which dictate that they are not to be kept alive using artificial means? That right could be waived if this passes.

[monkeywrench]

She has a right to life which should supercede any rights he claims. His "right to decide" can't trump this basic fundamental right to life of hers. I think it'd be great if the govt. set the precedent of defending individual rights.

[MatrixMetaphore]

Please try to think this through. Yes, everyone has the right to live. However, what if you are not capable of choosing that right? That is why we have power of attorney, and next of kin. They are authorized to speak on our behalf when we are unable to. She, obviously, is unable to express exactly what she wants. Therefore, it's up to the next of kin, who is her husband. Your personal feelings on him and his position notwithstanding, he is the one who decides what is "best" for her. You want to take that away from him.

Again, your feelings towards him notwithstanding, how would you feel if your spouse was physically and/or mentally unable to choose their own fate, and you and their parents were feuding on it. Legally you have the right to choose for them. Would you want the government to take that away?

[self_evident]

When judges act in a way that contravenes the conscience of the executive, they forfeit the cooperation of the executive

Well, that's interesting. Judges can't "contravene the conscience of the executive".

[monkeywrench]

"However, what if you are not capable of choosing that right?"

Fortunately, the Constitution decides for me and my God given unalienable right to life. That way, no conflict of interest, such as the hino's, will kill me. The govt. was instituted to protect that most basic right. If it doesn't, what need do we have for govt.?

Straying beyond Constitutional borders will just get us further mired in complex and conflicting interests. Not to mention rights made out of whole cloth.

[agrace]

Anyway, my guess is that the case you quoted was bias on race discrimination. Obviously that's not the case with Terri Schiavo.

The excerpt from the link I found said that the second, federal trial was held because the justice dept felt that the first verdict was racially biased, I guess meaning that the not guilty verdict violated Rodney King's civil rights. Maybe the racial aspect doesn't apply here, but bias certainly might. As well as other civil rights violations, which seems to be the angle the Schindlers are using in this federal track. Unfortunately, so far, the federal courts aren't in agreement with them, or me. :)

And regarding precedent, I think I'm concerned about the opposite - the federal precedent I am worried about is that this will NOT be viewed as murder because of the federal rulings so far. Seems like a start down a dangerous slippery slope where cases from any state could point to this one and say that deliberate dehydration and starvation is acceptable.

[Nuzcruizer]

All I know for certain is that the clock is ticking, and if someone can act, they should do so NOW.

They can argue about whether or not it was a justifiable action later.