The Supreme Court on Tuesday upheld Oregon's one-of-a-kind physician-assisted suicide law, rejecting a Bush administration attempt to punish doctors who help terminally ill patients die.Fascinating. I'll have more later. For now, I'll just observe that this provides a nice occasion for liberals to feel mellow about that erstwhile bugaboo federalism.
Justices, on a 6-3 vote, said the 1997 Oregon law used to end the lives of more than 200 seriously ill people trumped federal authority to regulate doctors.
That means the administration improperly tried to use a federal drug law to prosecute Oregon doctors who prescribe overdoses. Then-Attorney General John Ashcroft vowed to do that in 2001, saying that doctor-assisted suicide is not a ''legitimate medical purpose.''
Justice Anthony Kennedy, writing for the majority, said the federal government does, indeed, have the authority to go after drug dealers and pass rules for health and safety.
But Oregon's law covers only extremely sick people -- those with incurable diseases, whom at least two doctors agree have six months or less to live and are of sound mind.
UPDATE: Kennedy writes:
The idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation in the CSA's registration provision is not sustainable....Dissenting are Roberts, Scalia, and Thomas. It's quite interesting that the majority is made up of everyone who voted in favor of congressional power in the medicial marijuana case, plus O'Connor and minus Scalia. That means only O'Connor took the strong federalism position in both cases. And only Scalia sided with the government in both cases.
The importance of the issue of physician-assisted suicide, which has been the subject of an "earnest and profound debate" across the country, Glucksberg, 521 U.S., at 735, makes the oblique form of the claimed delegation all the more suspect. Under the Government's theory, moreover, the medical judgments the Attorney General could make are not limited to physician-assisted suicide....
The statute and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally. The silence is understandable given the structure and limitations of federalism, which allow the States "'great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.'"....
Even though regulation of health and safety is "primarily, and historically, a matter of local concern," Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985), there is no question that the Federal Government can set uniform national standards in these areas. [Citation to the medical marijuana case, Raich.] ....
The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.
Let's look at Scalia's dissent:
The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position. 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 then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From 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 -- for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U.S. 308, 321-323 (1913); Lottery Case, 188 U.S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.The most interesting dissenter is Thomas, of course, because he voted against federal power in the medical marijuana case. He writes:
I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (THOMAS, J., dissenting); cf. Whitman, supra, at 486-487 (THOMAS, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States'" 'traditional . . . powers . . . to protect the health, safety, and welfare of their citizens.'" Raich, supra, at ___, n. 38 (slip op., at 27, n. 38). The Court's reliance upon the constitutional principles that it rejected in Raich -- albeit under the guise of statutory interpretation -- is perplexing to say the least.Thus, Raich was wrong, but now it's decided, and you ought to have to face up to the consequences of your own decision.
But there is some reason to see statutory interpretation and constitutional law as different when it comes to the division of power between the states and the federal government. You might want to interpret statutes narrowly to preserve room for the states to pursue their individual policies but still not want to say that Congress lacks the power to intrude with uniform law if it sees good enough reason to do so. Demanding that Congress pass more explicit statutes in order to blot out state experimentation in areas of traditional regulation is not inconsistent with the belief that Congress ultimately does have that power. This is a moderate approach to federalism that appreciates that uniform law may be necessary, but still values decentralized lawmaking. It enforces federalism values by requiring Congress to go through the exercise of consciously considering whether to deprive the states of the room to choose their own policy preferences.
ADDED: Here's a link to the text of the case, Gonzales v. Oregon.