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?

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:

That the statute was applied in only one case does not make it any better or worse for separation of powers purposes. Applied to any case or any class of cases, it would violates Florida’s separation of powers. Cf. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 219 (1995)

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.

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.

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.