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Lines of power blurred with Schiavo law

Many legal experts believe a law quickly passed by Florida lawmakers and signed by Gov. Jeb Bush to help keep a brain-damaged woman alive will be found unconstitutional.

But the argument over constitutionality isn't one that carries much weight in the Capitol halls, where the Republican governor and GOP-led Legislature who have sworn to uphold the Florida Constitution often pay scant attention to it.

The battle over Terri Schiavo's life is only the latest, albeit one of the most blatant, example of the executive and legislative branches of government ignoring the fact that the courts have separate powers.

"Ignore is too weak a word," said University of Pittsburgh law professor Alan Meisel. He said the Schiavo case was more an example of "going out of their way to flout the existence of the courts."

It took Michael Schiavo six years to win a court battle to have his wife's feeding tube removed. The Legislature and Bush needed less than two days to pass a law that forced a hospital to reinsert the tube.

Schiavo, now 39, suffered severe brain damage in 1990 when her heart stopped. The legal battle over her fate is one of the nation's longest and most contentious right-to-die cases.

"This is not the first time the Legislature has attempted to override a court decision and I think this just stems back to the problem the governor and the Legislature are having with the court system of Florida, especially the Supreme Court," said former Supreme Court Justice Gerald Kogan. "It is difficult for the governor and the Legislature to accept the fact that there are three branches of government."

Opponents in the Legislature argued that the law was unconstitutional and even lawmakers who voted for it agreed that there could be constitutional issues with the action.

But former House Speaker Jon Mills, now a University of Florida law professor, said lawmakers often argue that bills may be unconstitutional and the response is usually "So what?"

Mills, who specializes in constitutional law, recalled arguing in the 1980s that a drug paraphernalia bill was unconstitutional only to see it passed. The state spent $300,000 defending the law only to have it thrown out by the courts, he said.

Sometimes lawmakers go ahead and pass laws despite constitutional questions because of the message it sends, other times they truly believe in the policy they're trying to enact, he said.

In the Schiavo case, it probably would have taken too long to draft a bill that would have withstood a constitutional challenge, Mills said. But even if the law is thrown out, lawmakers achieved their goal of keeping Schiavo alive.

"Even if there was a likelihood that it would be declared unconstitutional, many of these people probably thought they were doing the right thing," Mills said. "And now the court will do its job."

Bush said he respects the courts and did not take action in the Schiavo case until there was a law that let him intervene.

"I cannot unilaterally overthrow court decisions," he said. "It is not my job. It doesn't mean I have to agree with every judicial decision, but I am bound and have a duty to uphold the law."

He added that it was not up to him to determine the constitutionality of the law.

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