Death Watch

The U.S. Supreme Court has just struck down a federal effort to stop legal assisted suicide in Oregon. Oregonians have twice approved the law for effect in their state, but then-Attorney General John Ashcroft tried to circumvent the law by interpreting that Controlled Substances Act in such a manner as to preclude the Oregon law. By a 6-3 vote, the Court held that this was beyond the scope of what was authorized by the CSA (Roberts, Scalia, and Thomas dissenting). The case was Gonzalez v. Oregon.

There are a couple points to be made here. The first is the most obvious: how this case is an arrow through the heart of conservative claims to support federalism--or strict constructionalism for that matter. Consider this nugget from Scalia's dissent:

The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But....[f]rom an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality....

You got that? Even though it is found nowhere in the constitution, and justified by nothing more than a vague reference to "public morality", and involves an area traditionally left to the states, it's still a perfectly permissible. Oh, and though Scalia says that we've done this "from an early time in our national history," the earliest case he cites is from 1903, a good 110 years beyond the drafting of the Interstate Commerce Clause, and well beyond the time when a good little originalist like Scalia normally considers to be an "early time" for a constitutional clause. Not only that, but as Legal Fiction notes, Scalia isn't even consistent with that formulation--his vote to strike down the Violence Against Women Act seems difficult to square with an opinion that says congress can use interstate commerce to regulate morality (unless, of course, beating women isn't a moral issue at all).

Robert Tsai gives the take-down of Justice Thomas' separate dissent.

An interesting question is why Oregon lost Justice Thomas, who is moved to write separately. Remember, Thomas dissented in Gonzalez v. Raich, in which the Court struck down California's medical marijuana law as interfering with the CSA's regime. The state had an extremely difficult argument because Congress has specifically enacted a law listing marijuana as a schedule I substance. By contrast, the Republican Congress had tried to ban assisted suicide and failed to muster enough votes before Ashcroft issued the interpretive rule.

There are three possible explanations for Justice Thomas' sudden coolness toward federalism. First, he really does believe that Raich decided every possible federal-state question that could arise involving the CSA. I think this is unlikely--not even Scalia would go that far in his devotion to stare decisis--and Justice Thomas has in other federalism cases shown a willingness to narrowly construe inconvenient precedent. Second, he does not particularly believe that life-ending decisions are the kinds of things that implicate core state powers. A third possibility is that he is personally opposed to suicide of any kind, and his willingness to permit the cultivation of national moral standards trumps his sympathy for state sovereignty. In my view, the answer involves some combination of explanations two and three.

Nothing more to add to that--it's the politics, baby.

That's all very interesting, but it's been said by every commentator under the sun. What I'm interested in is what it reveals about our new Chief Justice, John Roberts. His dissenting vote on this case is very interesting. It is difficult to imagine a state's rights advocate like William Rehnquist making this vote. So right there we have a major difference in opinion between the old Chief and the new one--one I don't think reflects well on Roberts.

Because while this case had federalism implications, at its very core, it was actually an executive power case. Did the Attorney General (a member of the Executive Branch), have the authority to interpret a federal statute in this manner, or did it need congressional authorization first? This may seem rather arcane, but look at how Orin Kerr excerpted from Justice Kennedy's majority opinion and you may see what I'm getting at.

[T]he Attorney General claims extraordinary authority. If the Attorney General's argument were correct, his power ... would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General's limited authority ... but to have given him, just by implication, authority [over] an entire class of activity ....
[...]
The Government, in the end, maintains that the [statute] delegates to a single Executive officer the power to effect a radical shift of authority .... The text and structure of the [statute] show that Congress did not have this far-reaching intent to alter the [institutional] balance and the congressional role in maintaining it.

As Kerr notes, this is precisely the type of language one can imagine being used in the NSA wiretapping cases, in opposition to the broad and unrestrained federal power the President claims he has inherently under Article II. And by contrast, Roberts' dissent shows that he is quite comfortable with extraordinarily broad interpretations of executive power with little or no congressional authorization to back it up.

Finally, Professor Bainbridge is "confused" as to why "federal drug law does not preempt state law when it comes to doctors prescribing drugs so their patients can kill themselves, despite the long-standing moral and legal traditions against suicide. But federal drug law does preempt a state law that would allow doctors to alleviate suffering by prescribing a simple joint." The "hyper-technical" explanation you seek, Professor, is that congress authorized the latter but not the former. I don't think that Professor Bainbridge himself subscribes to this theory, but it really is a sad day in America where congressional approval of executive actions really is argued by some to be an irrelevant "hyper-technical."

See also: INDC Journal
John Cole
Baseball Crank
Kevin Drum
Rick Garnett

Another issue I want to hit briefly was a CNN report on a Massachusetts case involving removing an 11 year old girl who is in a permanent vegetative state from life support. Here's the twist: she's currently under the custody of the state. The person suing, and the closest thing she has to a legal guardian, is her step-father--who stands accused of committing the beating that put her in this state. The Court ruled that the state can take her off life support

This is a perfect manifestation of the axiom that "great cases and hard cases make bad law." I'm uncomfortable with giving the state authority to make this decision--but letting her abusive step-father do it seems, if anything worse. Anyway, just though I'd throw that one out there, because it's topical and timely.

UPDATE: So of all the folks accusing Scalia of hypocrisy, Baseball Crank (C/P'd at Redstate) plucks me out of the crowd to set an example with. It's a good post, but I don't come away convinced that Scalia is saved here.

The crux of the argument comes down to two things. The first is the whole nebulous "public morality" justification for legislation. Scalia thinks that this is "settled law," but it's hard to see how in the wake of Romer v. Evans and Lawrence v. Texas. Scalia was indeed apoplectic at how these cases eroded the government's power to make morality based legislation--it's hard for him to turn around two and a half years later and say it's still "settled."

The second is on enumerated "powers" versus enumerated "purposes." Congress must clearly stay within the former, the question is what it has to do with latter. And I think that's a complex issue. For the most part, I don't think congress has to stay within enumerated purposes when enacted legislation. However, there is a significant caveat to this. When we're dealing with areas normally delegated to the states (of which medicine is clearly one), we better be damn sure that congress actually intends to impinge on that authority. It can do it, perhaps, but we shouldn't assume it--the we being either the Courts or Executive Branch interpreters. Absent specific congressional language to the contrary, there is no good reason to assume that "legitimate medicinal purpose" should be removed from being traditionally defined by the states and transported to a federal issue. This seems like a reasonable, conservative way of interpreting statutes (at least in the post-Wickard v. Filburn era)--we should assume them to respect federalism unless they specifically decide not to. There is also a second caveat, that there are illegitimate purposes even granting Article I powers (such as expressing sheer malice), but that isn't pertinent here.

I think a great analogy is to soon-to-be Justice Alito's defense of his opinion striking down a federal ban on Machine Guns. He didn't say that the federal government has no power to do it inherently, he just said if it's going to rely on the ISC clause, it better provide some actual findings to back it up. Scalia's opinion in Lopez also casts problems on his consistency--if the fact that guns usually cross state lines to reach schools doesn't implicate the commerce clause, how does medicinal drugs crossing state lines suddenly bring it back into play?

See also Protein Wisdom
INDC Journal
Political Spectrum