Assisted suicide and federalism.

Here's the AP report on the physician-assisted suicide case that comes up for oral argument in the Supreme Court today:

In 1997 the court found that the terminally ill have no constitutional right to doctor-assisted suicide. O‘Connor provided a key fifth vote in that decision, which left room for state-by-state experimentation.

The appeal is a turf battle of sorts, not a constitutional showdown. Former Attorney General John Ashcroft , a favorite among the president‘s base of religious conservatives, decided in 2001 to pursue doctors who help people die.

Hastening someone‘s death is an improper use of medication and violates federal drug laws, Ashcroft reasoned, an opposite conclusion than the one reached by Janet Reno, the Clinton administration attorney general.

Frankly, I think this is an easy case (for federal supremacy), but it's a hot-button issue, so it will be interesting to see what is said -- especially by the new Chief -- at the argument.

The NYT has this editorial:

[T]he Court of Appeals was right to resolve it more simply, through a careful interpretation of the Controlled Substances Act. Mr. Ashcroft claimed that the law gave him the power to overrule Oregon's assisted suicide policy. But when Congress passed the act, it clearly intended to prohibit ordinary drug abuse, not to set out a federal policy on assisted suicide....

In his zeal to stop assisted suicide, Mr. Ashcroft, a self-described legal conservative, turned his back on two principles that are sacred to legal conservativism. First, he refused to strictly, or even accurately, construe a Congressional statute. Instead, he inserted meaning in it that did not belong there, giving himself power that he should not have had. Second, he ignored conservative dogma about deference to the states, especially on matters like regulating medical practice, a core state concern.

There is some appeal to the idea that the courts ought to narrowly construe broadly written federal statutes where the states have undertaken specific policy experiments in areas of traditional state concern (such as health). (I have a forthcoming article that sees Justice O'Connor's dissenting opinion in the medical marijuana case as suggesting this new approach to preemption.) This might seem like a good idea, but to be principled, you can't turn it on and off. The NYT likes assisted suicide and reviles Ashcroft's conservatism, but if this is to be the approach to federalism, it would have to apply even when you loathe the state's policy and love the federal law. I can't help thinking that the NYT would be back to wailing over the horrible "federalism revolution" if its policy preferences were the other way around.

UPDATE: Here's a very early report on the oral argument:

"The most natural reading of the (federal) Controlled Substances Act is ... this falls within the authority of the attorney general," said Solicitor General Paul Clement, arguing on behalf of the Bush administration....

Justice Sandra Day O'Connor immediately challenged Clement, asking if federal drug laws also prevented doctors from participating in the execution of murderers.

Justice Anthony Kennedy said he found it "odd" that the attorney general determined physician-assisted suicide to be an abuse of drug laws, when the state of Oregon strictly limited how the drugs could be administered and in what cases.

"I don't think it's odd," Clement replied, noting that federal laws regulating drug use have been in place for more than 90 years.

ANOTHER UPDATE: Here's more on the oral argument:

"The practice of medicine by physicians is an area of traditional regulation by the states, is it not?'' O'Connor asked U.S. Solicitor General Paul D. Clement....

New Chief Justice John G. Roberts Jr. directed most of his questions to Oregon Assistant Attorney General Robert M. Atkinson, who represents the state. Roberts signaled skepticism when Atkinson said the federal government couldn't stop states from authorizing doctors to distribute morphine for medical use or steroids for bodybuilding.

"Doesn't that undermine the uniformity of federal law and make enforcement impossible?'' Roberts asked....

Members of the court's liberal wing joined O'Connor today in expressing skepticism about the federal government's bid to block the state law.

Justice David Souter said Clement's argument would make the attorney general the "sole authority to determine whether any state may or may not authorize assisted suicide and would do so in a way that any other attorney general can flip back and forth.'' Souter called that a "bizarre result.''

Justice Stephen Breyer told Clement that the argument against the government's case is that the Controlled Substances Act "has nothing to do with assisted suicide.''

Breyer later prodded Atkinson, without success, to draw a distinction that would allow the federal government to fight abuse of morphine and other addictive drugs but not to second-guess states that want to let doctors facilitate suicide.

Justice Anthony Kennedy, often a swing vote on social issues, called the dispute "a hard case'' and directed questions to both sides.

Clement said the Controlled Substances Act gave broad enforcement authority to the attorney general, saying ``the abuse Congress was concerned with is not solely addictive abuse.'' He pointed to the ``date-rape drug,'' a sleep medicine that some rapists have used to disable their victims.

Justice Antonin Scalia suggested he agreed with that argument, saying Congress had a broad aim when it passed the law in 1970.

"I think that assisted suicide would have been as unthinkable at the time this was enacted as prescribing cocaine for recreational use,'' Scalia said.

STILL MORE: Here's David Savage's report in the L.A. Times, which portrays Roberts as especially active:

"What's the closest analogue to this?" the chief justice asked Clement, pressing for an example of where the U.S. attorney general overruled the states and their doctors on how legal drugs are used.

Clement paused and then responded that the Food & Drug Administration had objected in the 1970s when several states allowed the use of laetrile as a cancer treatment.

"That's the FDA. What about the attorney general?" Roberts repeated.

Clement could not cite a specific example of where the attorney general had overruled the state medical authorities on the use of prescription drugs. Roberts' question highlighted that Ashcroft was claiming a new power to regulate medical practice.

Oregon state lawyer Robert M. Atkinson picked up on that point, saying that "for the first time in our history ... a single, unelected federal official has decided what is accepted state medical practice."

But Roberts also challenged Atkinson's claim that state authorities could ignore the federal drug laws.

Suppose one state decided that it would permit people to obtain morphine from their doctors because "it makes people feel better," Roberts said. "Doesn't that undermine the effectiveness of the federal law? How is the federal government supposed to enforce its prohibition" on abusing morphine if one state permits it? he asked.

EVEN MORE: The Linda Greenhouse article in the NYT about today's argument doesn't even mention Roberts. [MORE: The longer version of the article at the link now does mention Roberts at the end, but not in connection with the suicide case.]