Politics & Policy

Lethal Error

The Florida supreme court's rationale for overturning Terri's Law is fatally flawed.

Last Thursday, the supreme court of Florida unveiled its unanimous decision to strike down Terri’s Law, the Florida statute that authorized Governor Jeb Bush to save Terri Schiavo’s life.

Observers have criticized the decision as a frustration of the will of the people, as an exercise in judicial arrogance, and most disturbingly as a green light for the adulterous Michael Schiavo to seek yet another court order terminating the tube-feeding of his brain-damaged wife.

All true. Yet the decision is something else as well: It is an embarrassingly bad decision legally.

The seven supreme-court justices hinged their ruling on two constitutional doctrines that supposedly doomed Terri’s Law: the separation of powers and the unlawful delegation of authority.

Separation of powers, of course, is a familiar concept. The basic notion is that the executive, legislative, and judicial branches of government should not usurp each other’s functions.

In the Schiavo case, the state courts had previously ruled that Michael Schiavo, as Terri’s guardian, should withdraw the tube that provided food and fluids to Terri. Because Terri’s Law “allows the executive branch”–in this case, Governor Bush–”to interfere with the final judicial determination,” the state supreme court declared the law “without question an invasion of the authority of the judicial branch” and thus unconstitutional.


Every time a governor pardons someone convicted of a crime, he “overturns” a judicial determination of guilt, and the judicial imposition of a sentence. So what? The courts gave their opinion, but the governor decided, for whatever reason (perhaps new DNA evidence of innocence), to respectfully differ.

Or suppose a court has awarded custody of a child to someone (for example, in divorce proceedings or through adoption). Does “separation of powers” mean the state child-protection agency–an executive-branch entity–may not intervene if it has strong evidence that the custodian is abusing the child?

If I win a court fight with a rival claimant over title to some property, does that mean I can raise a “separation of powers” objection when the local government condemns that same property for a new highway?

Must police ignore threatening behavior by individuals recently released from mental institutions because courts have concluded they are “not dangerous to others”?

The fact is, the legislature and the governor “interfere” all the time with matters the courts have previously sorted out. If that were unconstitutional, law enforcement and legislation would be practically impossible. The two non-judicial branches would have to spend all their time tiptoeing around every case a court had decided on anything.

The state supreme court’s second rationale for overturning Terri’s Law is similarly flawed.

In Florida, the courts have adopted (made up?) a rule that says it is unconstitutional for the legislature to give the governor “too much” discretion in carrying out a program, as that would be an “unlawful delegation” of legislative power to decide law and policy. How much discretion is “too much”? The courts will let you know, thanks. (Curiously, there is apparently no corresponding ban on courts assuming too much power over decisions of law and policy.)

Obviously, there are some fundamental problems with this judge-made doctrine of unlawful delegation. But even accepting the doctrine as legitimate, the state supreme court’s invocation of it against Terri’s Law is questionable at best.

The Florida supreme court has already ruled that a fluid standard like “the public interest” is sufficient to defeat a claim of “too much” discretion. The governor’s power to pardon criminals, of course, is quintessentially discretionary. And a host of other laws authorizing the governor to act–in emergencies, in the transfer of state land for federal projects like lighthouses and parks, in staying the execution of insane persons–employ such subjective standards as the governor’s “opinion” or what the governor “deems proper,” if they specify any standard at all.

Terri’s Law carefully cabins the scope of the governor’s authority to spare from death certain vulnerable disabled people, while leaving the ultimate fact-based judgment calls to the governor. That limited grant of executive discretion easily passes muster under the state supreme court’s “unlawful delegation” test. (And if it doesn’t, someone had better let Governor Bush know his far-broader discretion to respond to the emergencies caused by the recent wave of hurricanes is probably unconstitutional!)

The supreme court of Florida made no effort to reconcile its decision in Bush v. Schiavo with the pardon power, the governor’s emergency powers, and so forth. Instead, the court’s opinion reads like a conclusion in search of a justification.

Maybe that’s what it was.

Walter M. Weber is senior litigation counsel for the American Center for Law and Justice. He is one of the attorneys representing Terri Schiavo’s parents, Mary and Robert Schindler, in the case of Bush v. Schiavo.


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