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March 25, 2005

Why Jeb Bush has the Power to Act Now


Reagan administration official and Republican presidential candidate Alan Keyes is in Florida's capital trying to persuade Gov. Jeb Bush to intervene to save Terri Schiavo's life. In a recent in-depth essay, Keyes draws on the intended and necessary separation of powers to assert that "Terri Schiavo's survival depends on Gov. Bush's faithful execution of [his] responsibility, and the survival of American self-government on the willingness of all those in a like position to faithfully execute the duties of their high office."

I’ve quoted a number of key sections in this lengthy yet well written article.

Despite the outward appearance of deliberation, what we witness now as an ongoing feature of the conduct of the judiciary at every level amounts to a judicial riot, in which judges and justices take it upon themselves to disregard the prerogatives of the other branches in order to assert an exclusive and tyrannical control of public standards and conduct.

Why is this happening?

The root of the problem is the abuse of the power of judicial review. This played a role in the Schiavo case, when the Florida state Supreme Court declared unconstitutional the Florida legislature's attempt to authorize protection for Terri Schiavo's continued access to nutrition.

But in a constitutional system based on checks and balances, one branch can run riot only if some other branch fails to exert the power necessary to constrain its actions within constitutional bounds.

This means that the rise of judicial tyranny represents a failure elsewhere in the government. Now we know that in the Schiavo case, both the Florida and the national legislatures exerted themselves in an effort to secure her basic right to life. They failed because the judiciary has the power to invalidate their actions, either in application or through the power of judicial review.

In the end, the constraint of judicial abuse is especially the responsibility of the executive branch of government, since the executive has both the opportunity and the obligation to act without the interference of the judiciary, provided that in doing so he consults the political will of the legislative power.

Until and unless the people elected to wield executive power in our national and state governments recognize and act upon this responsibility, the judiciary will go unchecked, destroying the balance of power among the branches and with it our system of free, representative self-government.


As governor, Jeb Bush represents a separate government power, a distinct and independent governmental authority. As the state's chief executive, he is sworn to uphold the Florida state constitution, an obligation that necessarily includes taking such actions as are necessary to preserve, protect and defend the integrity of its provisions.

If by some circumstance, he becomes aware of a situation in which that integrity is being damaged, he is bound by his oath to act in its defense.

If, for example, he were notified that a court sanctioned, racially motivated lynching was taking place across the street from the state House, he would be oath bound as chief executive to intervene to prevent the violation of constitutional right and integrity.

Even if a racist judge had ordered the hanging, as chief executive he would have a responsibility to the Florida constitution making it impossible for him to respect the judge's order, however well-decked-out in formal judicial garb.

In such a circumstance, if Jeb Bush ignored the constitutional violation and later pleaded that he was respecting the court order, his plea would have no more validity than the plea of Nazi generals that they were only obeying orders.
Indeed, his claim would be more precarious, since the separate and independent status of the executive branch of government is a well known and widely acknowledged element of American constitutional principle.


If, as chief executive of Florida, Jeb Bush believes that starving Terri Schiavo to death is a violation of her right to life, and to defend her life, as recognized in the Florida constitution (Article I, Section 2), he has the same obligation to defend constitutional right as he would in the lynching example.

Unlike the Legislature, he would not act in order to overturn or reverse the action of the judiciary, but in order positively to fulfill his obligation as chief executive, by preventing the destruction of a citizen's most basic constitutional right.


Terri Schiavo's survival depends on Gov. Bush's faithful execution of this responsibility, and the survival of American self-government on the willingness of all those in a like position to faithfully execute the duties of their high office.

In times like these, calculating politicians are not good enough. Enlightened statesmen are needed at the helm. God help us if we do not soon choose to find them there.


Keyes' explanation is particularly poignant considering that Judge Greer has ruled in opposition to a state statute requiring the executive branch to act:
The Florida judge presiding over the Terri Schiavo case ordered the state agency charged with protecting vulnerable adults to make no attempt to take the brain-injured woman into protective custody late Wednesday. The order appears to be in direct contradiction to a state statute that requires the agency to act.

The statute states, "If it appears that the vulnerable adult ... is likely to incur a risk of death or serious physical injury if such person is not immediately removed from the premises, then the representative of the department shall transport or arrange for the transportation of the vulnerable adult to an appropriate medical or protective services facility in order to provide emergency protective services."

Jennifer Lima-Smith, an attorney for the DCF, reminded Greer that the agency does not need his permission in advance to act.

"The law allows the department to exercise both emergency protective services -- intervention and emergency removal -- either one or both," Lima-Smith told Greer.

The statute also appears to specifically exempt DCF from an otherwise enforceable mandate to seek Michael Schiavo's permission to remove Terri.

Excerpts from CNS News State Told not to Enforce Law Protecting Terri Schiavo

Hence, Jeb Bush not only has the option to act, he has the OBLIGATION to act (now).

Posted by tim at March 25, 2005 2:51 AM

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