Executive Power

As I cruise the conservative websites to see what people are saying about the Terri Schiavo case it becomes clear that a surprising number of otherwise sensible people seem to think that a court order is holy writ.  The level of ignorance out there regarding basic civics is truly shocking.

There is no valid reason to have a case of the vapors at the suggestion that the Governor of Florida might flout a court order that he considers fundamentally unjust.  You and I have to obey court orders because, in most cases, the executive will encourage us to do so, with deadly force if necessary.  In Florida, Jeb Bush is the executive.  He is coequal with the Florida courts and he is constitutionally empowered and obligated to act in accord with his own judgments about what law and justice require.  He cannot delegate that obligation to the courts any more than Pontius Pilate could leave the fate of an obscure Nazarene preacher to the Jerusalem mob. 

If Governor Bush believes that the Florida courts have failed to develop a record that justifies starving Terri Schiavo to death under the law, he is justified, even duty bound, to act in her defense.  Acting is what executives do, it is what we hire them for.  When rioters are threatening to break into your home and kill your family you don't call the courts.  You call the executive branch and you demand that it protect your fundamental right to life. 

The fact that Terri Schiavo needs protection from a court-ordered threat to her life doesn't change the equation at all.  A governor who concludes that the courts may have failed to protect Terri's fundamental rights is bound by his oath of office to defend those rights.  Governor Bush could easily do so by ordering a full executive investigation of the circumstances surrounding Terri's case, and having the state police take Terri into protective custody pending his final decision regarding her permanent status.  No doubt the complaints would be boisterous, but they would also be baseless.

Florida's government is a conversation among many actors separated into three branches with distinct powers and duties.  The Governor is by far the most important of those actors.  The idea that the judiciary always gets the last word is asinine.  In fact, the executive generally gets the last word.  It controls most of the guns.  This is how our system works; it is how our system has always worked; it is how our system ought to work.  That's democracy in action.

There is no basis at all for hyperventilating about the prospect that the Governor Bush might moot the fatuous judicial process in Terri's case.  Far from representing an affront to the rule of law this would help move us to a better, fuller realization of that ideal.  The law is much more that what some fool who goes to work in a black bathrobe says it is.  The exaggerated respect for judges that is epidemic these days undermines respect for the law and threatens the foundations of our constitutional order. 

Come on Jeb, do your job.

Comments

[Luciferous]

Your next to last sentence would be vigorously countered by judges, lawyers, law professors, assorted advocates of unchecked judicial power, and the legions of dim bulbs that repeat endlessly in classrooms, newspapers, and tv that ours is a government of three separate but equal branches of government. While the branches are separate and functionally in tension, the big battalions are the legislature (which has the big guns but lacks unity of purpose) and the executive (who has fewer - but real - guns, but who has unity of purpose and action). Courts would never overreach if the other branches were self-aware and justly jealous of their perogatives, the consequences would be painful. Unfortunately, legislatures and executives are lax in maintaining their own institutional integrity. Judicial usurpation flows easily into this vacuum. Would a bold act by the executive begin to remedy the constitutional distortion? Perhaps. Is this the right fight to engage the issue? Absolutely. A skilled politician, such as Jeb Bush, can't lose. The court responsible for starving to death a helpless woman is not a serious opponent.