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Experts Say Case Blurs Checks And Balances


Published: Mar 19, 2005

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TALLAHASSEE - Who has ultimate authority over end-of-life intentions?

In the case of Terri Schiavo, it has been the executive branch of government, when Gov. Jeb Bush ordered the incapacitated woman's feeding tube reinserted in 2003.

It has been the legislative branch, with Florida's ``Death With Dignity'' statutes, the ill- fated Terri's Law and, now, more congressional intervention.

It has been the judicial branch, spanning eight years of litigation and at least 19 judges.

With the legal and political brawls over Schiavo's fate intensifying Friday, some constitutional law experts expressed concern over the blurring of the separation of powers that is a bedrock of U.S. democracy.

``The question is, `Just how far are these government [interveners] willing to go?' '' said Randall Marshall, legal director for the American Civil Liberties Union of Florida. ``Once there is no longer any avenue of relief, are they done? Do they respect the judicial system?

``If not, then certainly there is a constitutional crisis. When government officials say, `We will not listen to a decision of the court,' then we have a constitutional crisis.''

Of course, one lawyer's constitutional crisis is another's opportunity. Jay Sekulow, chief counsel of the American Center for Law and Justice, a legal organization affiliated with the Rev. Pat Robertson, says it is entirely appropriate for lawmakers to attempt to enforce the ``dignity of human life and liberty'' while a Florida judge weighs the removal of Schiavo's feeding tube.

Paul M. Johnson, an associate professor and chairman of the political science department at Auburn University, has written on issues relating to separation of power. ``Under normal circumstances, this case would have been settled by a county judge or one appeal up,'' Johnson says. ``But people are accustomed to forum shopping. This is the ultimate case of forum shopping.''

Checks And Balances

The framers of the U.S. Constitution believed the root of tyranny was the concentration of power in the hands of too few. Establishing the executive, legislative and judicial branches at the state and federal levels set up the checks and balances that have protected U.S. democracy for more than 200 years.

There are a couple of troubling aspects about the Schiavo case and that separation of power, experts say.

First was Terri's Law, an attempt by the Florida Legislature to, in the words of ACLU's Marshall, ``usurp and override six years of litigation'' that culminated in the removal of Schiavo's feeding tube in 2003.

Just days after a state Supreme Court decision affirmed the removal of the tube, the Florida Legislature rammed through the law giving the governor the authority to order it replaced.

``One danger from a constitutional perspective is that the judiciary is supposed to exist to provide a check on entities like the Legislature,'' says Kathy Cerminara, a law professor at Nova Southeastern University and expert in end-of- life law. ``You allow the Legislature to ignore the courts and you just upset our system of checks and balances.''

Terri's Law was ruled unconstitutional. This year, the Legislature came back with similar legislation.

It passed the state House but is stalled in the Senate amid concerns it remains unconstitutional.

Friday morning, congressional leaders in Washington issued subpoenas to key players in the drama, including Terri Schiavo herself. The maneuver would have compelled recipients to testify before a committee hearing, effectively keeping her alive.

That set up yet another conflict between the judicial and legislative branches.

Not `Foreign To Congress'

Sekulow, of the American Center for Law and Justice, compared the issue to the civil rights movement in the 1960s, when Washington forced the issue on states and their courts. ``This is not some territory foreign to Congress. State courts are not immune from congressional scrutiny,'' he said.

Pinellas-Pasco Circuit Judge George W. Greer disagreed later Friday. Cerminara, the Nova Southeastern law professor, is relieved.

``The U.S. House certainly isn't supposed to be issuing orders that look like injunctions,'' she says. ``Everyone knows the purpose was to mandate that the feeding tube stay in. It didn't work, and it's a good thing. Writing injunctions is the court's job, not legislators' job.''

Schiavo's feeding tube has been removed and reinserted twice. At least two more lawsuits were filed Friday, but the ACLU's Marshall said a notation by the 2nd District Court of Appeal in Lakeland this week suggests closure is near.

``Not only has Mrs. Schiavo's case been given due process, but few, if any, similar cases have ever been afforded this heightened level of process,'' the court wrote.

Reporter Jerome R. Stockfisch can be reached at (850) 222-8382.



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