First, Florida Shoves Chimp_junta down our throats. Now Jeb Bush shoves a feeding tube Down the Throat of a Comatose Woman
In enacting a tightly focused, one-time-only law that effectively reversed a series of court decisions allowing a Florida man to withdraw life support from his brain-damaged wife, the Florida Legislature has created a constitutional crisis, legal scholars said yesterday.
"Courts get to decide particular cases, not legislatures," said Steven G. Gey, a law professor at Florida State University.
The law authorized Gov. Jeb Bush to issue "a one-time stay to prevent the withholding of nutrition and hydration from a patient" who meets four criteria. Those criteria are plainly meant to identify only the woman at the center of the constitutional showdown, Terri Schiavo.
Last week, a feeding tube that had sustained Mrs. Schiavo since 1990 was removed after her husband, Michael, won a series of court battles based on his contention that she once said she never wanted to be kept alive artificially.
But after the Legislature's action on Tuesday, Mr. Bush ordered the feeding resumed, and yesterday Mrs. Schiavo was receiving nourishment through a new feeding tube. Mr. Schiavo's lawyers were contemplating their next move.
One of them, George Felos, said yesterday that Mr. Schiavo would seek a permanent injunction against enforcement of the law.
Judge W. Douglas Baird of Circuit Court in Clearwater declined to rule immediately on an emergency request filed on Tuesday to strike down the law. The judge has set an expedited briefing schedule, requiring Mr. Schiavo to file a request for a permanent injunction within five days.
"We believe that a court sooner or later — we hope sooner — will find this law to be unconstitutional," Mr. Felos said on the NBC "Today" program.
That is likely, legal scholars said yesterday. Even if it does happen, however, the governor and his allies in the Legislature will have demonstrated their commitment to an issue of great concern to conservative voters in Florida.
From a legal standpoint, the main question is whether the Florida Legislature was authorized to undo a judicial decision.
In general, courts decide particular cases, and legislatures enact general laws. When either branch of the government strays from its role in the constitutional structure, its actions can violate the separation of powers doctrine.
The Supreme Court ruled in 1995 that Congress is prohibited from reopening final court decisions under that doctrine.
"The prohibition is violated when an individual final judgment is legislatively rescinded for even the very best of reasons," Justice Antonin Scalia wrote for the majority, "such as the legislature's genuine conviction (supported by all the law professors in the land) that the judgment was wrong."
That decision interpreted the federal Constitution. The question in the Schiavo case is whether the Florida Constitution has a similar prohibition. Professor Gey said it does.
"If anything," he said, "Florida separation-of-powers law is even more rigid than federal law."
The hastily written legislation is hard to follow, and it will allow many sorts of arguments in the courts.
"It's beautifully badly drafted," said Patrick O. Gudridge, a law professor at the University of Miami. The word "stay," for instance, does not really capture what Mr. Bush was authorized to do. In legal parlance, a stay temporarily suspends a judicial decision. Here, the statute authorizes the governor to override a judicial decision.
"They wanted to use the word `stay,' " Professor Gudridge said of the Legislature, "because the analogy is to a stay of execution."
Professor Gey said the Legislature's haste was evident.
"It was done in a rush and probably without much input from the legal staff," he said. "If you put it before a law professor, they are going to find 16 things wrong with it. The Legislature will respond, `Yeah, but we got our way.' "
Among the other problems with the law, said Michael R. Masinter, a law professor at Nova Southeastern University in Fort Lauderdale, are that it intrudes into what he called Mrs. Schiavo's constitutional right to privacy, that it gives enormous discretion to the governor in matters of life and death, and that it is so limited that it may run afoul of a provision of the Florida Constitution that limits so-called special laws.
Laurence H. Tribe, a law professor at Harvard, said the central problem is that the law violates Mrs. Schiavo's rights. "Because the state is obviously not trying to determine what she wanted or would have wanted," Professor Tribe said, "but rather is deciding what should happen, it fundamentally violates her right to bodily integrity."
The Legislature's interference with the judiciary's role may be conceived of in even starker terms than is suggested by the rather bland term "separation of powers," Professor Gey said.
"The statute tells the governor that he does not have to enforce judicial decisions," he said. "That's sort of George Wallace territory."
In the 1950's and 1960's, Gov. George C. Wallace of Alabama and other Southern officials defied federal court orders concerning school desegregation and protest marches. The situation in Florida is not precisely analogous, because the element of state's rights is absent.
Lars Noah, a law professor at the University of Florida, suggested a thought experiment to clarify how far the Legislature's power should extend.
"What if the courts decide, as I'm fairly sure they will, that the statute is unconstitutional?" Professor Noah asked. "Could the Legislature then instruct the governor to ignore that judicial order?"
If the answer to the second question is no, he suggested, the law enacted Tuesday must be struck down. If the answer is yes, he went on, the conventional concept of how legislatures and courts divide their responsibilities is wrong.
Link...New York Times
And who decides which person got the most votes for POTUS? The people, or the courts? Only in Chimp_junta Florida do these things happen.