We Todd Did
Just when I thought the level of argument on the Schiavo case couldn’t get any lower, I read this article by Wendy McElroy, a writer who I generally respect. The article does make one important, valid point: abortion and euthanasia are separate issues that ought to be debated separately. The rest of the article is pure, unadulturated rubbish. Take, for example, this line:
The hastily written “Terri’s Law” allowed Florida Gov. Jeb Bush to use the Legislature to overturn a court ruling, medical advice and a guardian’s decision. Terri’s Law will be challenged as a clear violation of both state and federal guarantees of the separation of powers: that is, the idea that one branch of government (the legislature) does not have the right to overturn the rulings of another branch (the judiciary), especially without standards or review.
[Emphasis added.]
As I have pointed out before, the separation of powers argument is far from clear; in fact, it’s a rather tortured argument. Legislatures change laws all the time, often in ways that also impact existing judgments. It’s called legislating. Does anyone seriously doubt that a state legislature could vote tomorrow to abolish the death penalty and halt all future executions? Would the ACLU then rush in and scream that the Legislature has improperly usurped the authority of the courts by rushing in and undoing all those death sentences that had already been validly litigated to finality by the courts? I think not.
While McElroy’s view on the separation of powers is wrong, she certainly has her share of company. The ACLU supports it, as does at least one law blogger of whom I am aware (note: you won’t find anything about Schiavo on his own blog, but you will find it in a guest entry on Kelley’s). Ergo, that position alone would not have justified the heading of this post. What does justify it is her absolutely nutty claim that Terri’s Law violates the federal guarantee of separation of powers. Huh?
November 4th, 2003 at 11:09 am
Thanks for the mention. I will probably be doing a redux on the issue this week at my place.
I read in an article in the Economist that “Terri’s Law” gave Bush the authority to take action only for 15 days, essentially making it a law to overturn a single court decision, not a legal principle. http://www.economist.com/world/na/displayStory.cfm?story_id=2177638
If this is true, would you still believe that a separation of powers challenge is tenuous?
November 4th, 2003 at 12:05 pm
I agree that the 15 day window makes the separation of powers argument a bit stronger, though not enough to invalidate the law on separation of powers grounds. IOW, short of abolishing the death penalty outright, the Pennsylvania Legislature probably could (God help us) enact “Mumia’s Law” to spare that rat bastard while leaving everyone other killer’s execution on schedule.
Ironically, George Felos takes the position that the short time frame is irrelevant to the separation of powers argument. Perhaps this si because he anticipates that “Terri’s Law” is just a quick fix to keep Terri alive until the Legislature has had time to draft a better, more comprehensive reform of its right to die law. Take a look at footnote 12 (pp. 25-26) to his brief:
I think he is stretching Plaut just a tad, but given the Florida Supreme Court’s past antics, I suppose just about anything is possible (and unappealable, to boot, as they’d be misappyling Plaut only by analogy, not directly). I may also be a bit biased by California courts, which construe the state separation of powers doctrine more loosely than at the federal level. Felos argues that the opposite is true under Florida law; I don’t know if this is correct or not.
Note, however, that Felos does raise other objections based on the narrow application of Terri’s Law. I find the “bill of attainder” argument on pp. 37-38 to be uncommonly silly, but for all I know there could be some actual merit to the “special law” objection on pp. 38-40. And then there is the “unconstitutionally vague” argument on pp. 40-42, which depends on teh existence of two dueling laws (court-ordered death vs. Gov-ordered life), a view inconsistent with the separation of powers argument, which treats Gov. Bush as the equivalent of a reversal. I know I can’t fault the guy for covering all the bases, but I do find that last position noteworthy, if only because it indicates that Felos recognizes his own separation of powers position is not as cut and dried as he likes to make it sound before the cameras.
I hope we can all agree on one thing, though: McElroy’s claim that Terri’s law violates, or even implicates, the federal separation of powers, is frivolous.
November 4th, 2003 at 1:48 pm
I’m known for being just a little crazy haha, but I got this funny impression that a legislature’s raison d’etre was to overturn the courts. I mean if you can’t overturn what unelected people in robes say why even bother with the whole charade of voting anyway.
I am being a little farcical, but come on, I thought legislatures overturn court rulings all the time through the legislative process especially when they don’t like the “common law” outcome. See a gazillion community property decisions then legislative enactments.
The big issue is whether a legislature could overturn a court’s constitutional decision, and that’s not at issue here. Although, even Lincoln believed that he (as President) could not be bound by the Supreme Court. And Jackson (granted both Executives) flauted a Supreme Court judgment.
November 9th, 2003 at 11:12 am
Help Us Protect And Ensure Life
And Liberty For Terri Schindler!
Become a Life Ribbon Site
You are encouraged to place a Life Ribbon Campaign banner on your servers and web pages to support/participate in the campaign described on this page at
http://bellsouthpwp.net/p/c/pc93/terri_schindler_life_ribbon_campaign.htm
Questions to: pc93@bellsouth.net
Also looking for co-ordinators for Terri Life Ribbon Meet-ups in their particular states/countries.