February 23, 2005

Let Oregon be Oregon?

Here's Linda Greenhouse's analysis of the Oregon assisted suicide case, which the Supreme Court announced yesterday it would hear. (The Ninth Circuit case to be reviewed was decided back in May, and I wrote about it at the time here.) Greenhouse (along with others) has written so many pieces decrying the Supreme Court's "federalism revolution" that it's interesting to see how she (and others) will write about a case where deferring to the states upholds a policy choice that is as far away from social conservatism as you can get. By the same token, it will be interesting to see if conservatives can stick to their federalism values and will be able to entertain the notion of letting Oregon be Oregon.
In the administration's view, suicide is not a "legitimate medical purpose" under regulations that carry out the federal Controlled Substances Act. Consequently, the administration will argue before the Supreme Court, as it did unsuccessfully in the lower federal courts, that doctors who prescribe drugs for committing suicide violate the federal law and are subject to revocation of their federal prescription license. The license applies to broad categories of medications and is necessary, as a practical matter, for a doctor to remain in practice.

Yet the case presents more of a challenge for the liberal side than for conservatives. Given the existing case law, the basis for federal power over prescription drugs is very strong, and it's hard to think of a way to pry drug law enforcement out of the grasp of federal power, even if you do believe that state experimentation in this area is a good idea. The same sort of federalism problem is also present in the medical marijuana case that the Court is already considering.

Liberals have strongly supported strong and pervasive federal legislative power for a long time. It is hard to think of how they can back off from that commitment simply because they approve of a policy a particular state has devised in a given instance. I think, to be principled, they should denounce the administration for taking the position it has with respect to enforcing the drug laws and stop there. Here's Greenhouse:
Although the justices have agreed to review the case, the "who gets to decide" argument on the merits may be a hard sell. The court has been notably deferential to the states, and eight years ago, in another assisted-suicide case, it appeared to invite continued state experimentation.

So here's the liberal talking point: the conservatives on the Supreme Court have been deferring to the states and they specifically encouraged state-experimentation in this area, so if they fail to follow through and uphold Oregon's experiment, they are unprincipled and result-oriented.

Don't believe it! The Supreme Court has upheld federal regulatory power quite consistently, and the deference it has shown to the states has only been in discrete areas. Congress's power to regulate all components of a national market -- such as the market in drugs -- is quite solidly established. It will be hard to find a way to back off from that. I support the Court's federalism decisions and I approve of allowing the states to experiment as Oregon has, but I don't see a good way, considering the precedents, to disempower the Attorney General in this decision about how the Controlled Substances Act ought to be enforced.

Note: The Ninth Circuit case is named Oregon v. Ashcroft, and it was Attorney General Ashcroft who announced the policy to lean on Oregon's doctors. But now Ashcroft is gone, so it will be Alberto Gonzales who will have his name on the case: Gonzales v. Oregon.

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