The Terri Schiavo Case
Arrogant Legislature finally walks all over itself
By HOWARD TROXLER, Times Columnist
Published October 22, 2003
Only now, after all these years of anguish, only after Terri Schiavo's feeding tube had been removed for almost a week ...
Only now, with the headlines blaring and the cameras rolling, does the grandstanding Florida Legislature rush in on Tuesday to rip up its existing law and trample over the courts - for one case only.
Notice those words, "existing law." This was not some correction of overreaching judges. It was the Legislature that wrote the existing law on the removal of feeding tubes. Florida's judges did exactly what the Legislature often accuses them of failing to do: They followed the law.
So in a sense, Tuesday's act, which gave the governor an extraordinary power to order Schiavo's tube reinserted, was a matter of the Legislature posturing against itself. The headline on Speaker Johnnie Byrd's press release should have said: "Legislature Saves Schiavo From Legislature."
Tuesday's banana republic mayhem was a spectacularly bad way to make new law. It was immature and intemperate. It was inconstant. It was law made up on the spot by a flock of clucking chickens jerking their heads in unison at loud noises and bright flashes of light.
The emergency act passed by the Legislature is not even a "law," in the sense of being a rule for all of society to live by. It was more of a whim, a dispensation - an exercise of raw power that lives for exactly 15 days and applies to exactly one case. No citizen of Florida before or after enjoys the same protection.
The Legislature simply waved a magic wand and claimed to grant Gov. Jeb Bush a power that he cannot possess. The governor is not king, you know, no matter how much they want him to be. Both he and the Legislature may exercise only the powers granted to them by the state Constitution.
So the Legislature can no more give the governor the power to issue a made-up "stay" of the judicial branch, as Tuesday's act pretends to do, than give him the power to declare defendants guilty, or order a jury to rule a certain way in a lawsuit, or force appeals courts to rule the way that he wants.
Even as a nuts-and-bolts matter, this act is too sloppy to stand up. It amends no existing statute, invokes no legal power of the governor, nor provides the citizens any relief by appeal. The law will surely be declared unconstitutional in due course.
In its rush, the Legislature drafted a law designed to apply precisely to the Schiavo case: the lack of a living will, a patient in a vegetative state, the feeding tube already pulled, and "a member of the patient's family" challenging the removal.
I was among those who questioned whether our previous law drew too fine a line - die if you need a feeding tube, live if you can still be fed by spoon. But plenty of good people have lived through the agony of having a relative in a vegetative state, and they fought for years for the right to remove feeding tubes. It was their view that had prevailed in our law.
Until Tuesday.
There has to be a certain ballast and gravity in the rewriting of our statutes for us to have faith in the rule of law. The law has to count for something more than the whim of the day, or the result of an insta-poll on the Internet. That's why the framers of the Constitution thought it was a good idea to require three readings of a bill, with certain built-in delays. Even that was too much for our video-age lawmakers, who waived those rules as a petty inconvenience.
What comes next? Might we decide next week we want a different number of jurors for Kobe Bryant, or other new rules for the hottest new Court TV case? Should we demand a higher burden of proof for the least popular side in lawsuits? Should we just give radio talk show hosts the power to file their own bills directly, and eliminate the middleman?
You know, we wouldn't be the first democracy to decide that this nonsense about the "rule of law" just gets in the way, and that the ends of the moment really do justify any means. But that decision never turns out well.
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It's not too late to state your views about Florida's proposed telephone rate increase. The Florida Public Service Commission will hold a public hearing at 6 p.m. Thursday at St. Petersburg City Hall, 175 5th Street N.
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Howard Troxler: Arrogant Legislature finally walks all over itself
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