UPDATE: Let me be clear about why I linked to that old post of mine, which discusses the as-yet-undecided Oregon Death With Dignity case. It is for this passage:
[The NYT's Linda] Greenhouse (along with others) has written so many pieces decrying the Supreme Court's "federalism revolution"...The federalism-enforcing cases have gotten a lot of press, and a lot of liberal commentators have tried to stir up alarm about how much had happened, but these cases never seriously undermined federal interests. The Court's federalism was always very tame. It only trimmed what was perceived as unimportant federal power around the edges. I could go on at length about this, as I have in scholarly articles, but really, if you actually thought the Court was seriously enforcing federalism, you were believing the spin. Conservatives were doing some similar spin, characterizing the Court as committed to something in the hope that it would demonstrate some serious commitment in the future, but, believe me, the commitment to federal interests was always there. And the federal government is unquestionably committed to drug enforcement.
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.
UPDATE: Here's the Wall Street Journal's contribution to the genre.
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In the middle: Read my update to the post, and I'll just add that if people want the medical use of marijuana to be legal, why hasn't Congress made it legal and why are they unable to press Congress to enact their desired policy? The war on drugs is a big federal effort, and individual states are disempowered from eroding it. That's what the new case said.
John: The DOJ is charged by Congress with the task of enforcing the Controlled Substance Act, and prescription drugs are approved from particular purposes, which do not include deliberate killing. There's some room for the kind of argument you're suggesting, but I predict it will fail.
EddieP: I think there's a legitimate concern that once there's a loophole, it will keep expanding and people will use it illegitimately. The plaintiffs in the case were very sympathetic, but I can understand the thinking of people who say it's better to have one flat rule and no excuses.
I just stumbled on your blog....I dunno where to start with the US legal system; death penalty, incredible rate of incarceration and mind boggling litigiousness. Elected judges and unelected Presidents!!! Good Luck! It was a very sad day recently here in Canada when, for the first time, our new small "c" Conservative government held (limited) public hearings as our new Supreme Court justice was confirmed.
I spend less time than I used to in the US (my HIV staus, if ever discovered, would block me forr life) and I have had some great times in Madison...one on my way out west, experiences described here on my blog:
http://toobusylivinglife.blogspot.com/2006/03/sad-old-south-dakota.html
As for marijuana, most politicians here freely admit that the reason it hasn't been de-criminalized (as opposed to legalized) here yet is due to intense pressure from...guess who.
One of my favourite quotes about lawyers is in the article, below, written by one of the greatest columnists:
http://www.rabble.ca/columnists_full.shtml?x=36556
I'd love to know what you think.
Hope all is well in Madison.
Peter
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