| Venue: | Ct. App. 2nd Cir. |
| Facts: | Schiavo is brain-dead. Her husband (against the wishes of her parents) wants life support removed. The legislature quickly grants the governor some authority, and the governor issues an executive order re-inserting the feeding tube. |
| Posture: | Findings in favor of the husband in guardianship court, affirmed on appeal, cert denied at that time. |
| Issue: | Does this violate separation of powers? |
| Holding: | Yes. |
| Rule: | No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein (FL Const). |
| Reasoning: | The power of the courts is not merely to rule on cases, but to
DECIDE them. They are subject to review only by superior
courts. Purely judicial acts are not subject to review
by the governor. The act reverses a perfectly good decision
by the court, and that's an unconsitutional encroachment on
legislative authority.
Not only that, but it delegates legislative authority to the governor, and that's not allowed either. The legislature can't delegate the power to enact a law. When the executive is empowered to act, and the guidelines are not sufficient, the act is a form of lawmaking. Here, the governor has the discretion to act in all kinds of ways, or even not at all. |
| Dicta: | Citing Madison Federalist No. 48: the legislative department is the one to be afraid of in the struggle for power. |