Posted on 10/05/2005 12:47:03 PM PDT by alessandrofiaschi
MEDICINE REGULATED BY STATES
"The practice of medicine by physicians is an area traditionally regulated by the states, it is not?" O'Connor asked Solicitor General Paul Clement, the administration's top courtroom lawyer.
It is not known whether O'Connor will still be on the court when it rules. She has said she will retire when her successor is confirmed by the Senate. Bush has chosen White House counsel Harriet Miers for O'Connor's seat.
Justice David Souter said that 90 years of federal regulation have been aimed at stopping drug dealing and drug abuse. He described it as a "bizarre result" to suddenly give the attorney general effectively sole authority over whether a state may authorize physician-assisted suicide.
Justice Ruth Bader Ginsburg asked whether the federal government had abandoned the position it took in a 1997 case that assisted suicide was a matter for the states to decide.
Besides Roberts, Justice Antonin Scalia also seemed skeptical of the state's position. "I think that assisted suicide would have been just as unthinkable at the time this (the federal law) was enacted as prescribing cocaine for recreational use," Scalia said. WASHINGTON (Reuters) - The U.S. Supreme Court seemed closely split on Wednesday on whether the Bush administration can stop doctors from helping terminally ill patients take their own lives under the nation's only physician-assisted suicide law. During arguments, the justices sharply questioned both sides on whether then-Attorney General John Ashcroft had the power under federal law in 2001 to bar distribution of controlled drugs to assist suicides, regardless of state law.
The Oregon law, called the Death with Dignity Act, was twice approved by the state's voters. The only state law in the country allowing physician-assisted suicide, it has been used by 208 people since it took effect in 1997.
It was the first major case that new Chief Justice John Roberts, a conservative jurist named by President George W. Bush, has heard since his confirmation late last week.
Several justices appeared sympathetic to Oregon's arguments that regulation of doctors and medicine has traditionally been left to the states rather than the federal government.
But other justices questioned how far a state could go and whether it could decide if doctors can prescribe morphine for depression or steroids for body building.
Roberts asked whether such state decisions would undermine the effectiveness and uniformity of the federal law.
Under Oregon law, terminally ill patients must get a certification from two doctors stating they are of sound mind and have less than six months to live. A prescription for lethal drugs is then written by the doctor, and the patients administer the drugs themselves.
Ashcroft's directive declared that assisting suicide was not a legitimate medical purpose under the Controlled Substances Act and that prescribing federally controlled drugs for that purpose was against the federal law.
He reversed the policy adopted by his predecessor, Attorney General Janet Reno, during the Clinton administration. Conservative lawmakers and groups opposed Reno's decision.
Justice Sandra Day O'Connor, who often casts the decisive vote on the divided court and often supports the states, questioned the federal government's argument.
She asked the hypothetical question of whether an attorney general who opposed the death penalty could take a similar position and decide physicians could not prescribe drugs for lethal injections of death row inmates.
Justice Stephen Breyer asked whether states could make marijuana or morphine legal. "Suppose I think the attorney general has the power to stop states from gutting the act," he said. Other justices asked whether states could allow doctors to prescribe steroids for body building.
A ruling is expected by the middle of next year.
In the next breath, Justice Ruth Bader Ginsburg asked whether the federal government had abandoned the position it took in a 1973 case that infanticide was a matter for the federal government to decide.
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
---James Madison, Federalist 45
Why do we need a law on this issue?
You let the doctor and patient resolve the matter between themselves. Unlike abortion, this does not involve the killing of a third party.
Seems like a doctor can give a patient a morphine drip and tell them to push the button when they need a dose. If the patient O.D.s, oh well.
You know what? If Scalia and Roberts rule for the feds in this, I swear I am done with politics for good. What the hell gives the feds jurisdiction?
Wow, good question.
The problem is that this case involves the drug laws, and Scalia always forgets who he is whenever drugs are involved. Look for him to chuck state's rights out the window, like he did last year on the medical marijuana case.
I really don't know why I pay attention. It's not worth the effort.
The Commerce Clause. These folks are engaged in interstate commerce.
229 years of federal regulation have been unable to stop any other crime, what's your point?
You forgot the sarcasm tag, right?
No.
Souter applying the word "bizarre" to anything is in itself the same..
High on the Commerce Clause
The unfortunate implications of the medical marijuana ruling.
Wednesday, June 8, 2005 12:01 a.m. EDT Opinion Journal EXCERPTED
As Justice Clarence Thomas wrote in his dissent: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers." By "enumerated powers," Justice Thomas means the idea that the federal government can undertake only such activities as the Constitution explicitly permits.
Hence the 10th Amendment, which reserves those powers not listed--such as criminal law enforcement--to the states. President James Madison, the Constitution's primary author, famously vetoed a highway bill in 1817: "The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers . . ."
How things have changed--largely as a result of New Deal-era jurisprudence holding that the federal government's Constitutional authority to regulate interstate commerce could be used to justify all sorts of previously unimagined powers. This can be a good thing, when what we are truly talking about is interstate commerce.
But by the 1990s federal law making had grown so unhinged from any plausible Commerce Clause justification that it provoked a minor Supreme Court backlash. In 1995 in United States v. Lopez, the Court struck down the Gun-Free School Zones Act on the grounds that gun possession near a school was not an economic activity. And in United States v. Morrison, the Court struck down portions of the Violence Against Women Act on similar grounds.
Raich would appear to end the Lopez line of reasoning, since the two decisions don't seem reconcilable. If, as Justice Antonin Scalia wrote in his majority concurrence, non-economic activities can be regulated so long as they are part of a "comprehensive scheme of regulation," there would appear to be no federal power the Commerce Clause couldn't theoretically justify.
And let no one be deluded that the democratic preference of America's largest state isn't being trampled here. We didn't support the California medical marijuana ballot initiative at issue in Raich. But a clear majority of Californians did. Just because an issue is "important" doesn't mean it should be a matter for federal law. Almost all homicide is regulated at the state level, and contentious issues like abortion rights are best handled not by judicial fiat but by democratic compromises in the 50 states. Who knows what further intrusions into the rights of local polities the Raich decision may one day be used to justify?
... But Justices Scalia and Anthony Kennedy, who voted to limit federal powers in Lopez and Morrison, appear to have retreated from putting any restraint on Commerce Clause-based regulation. This was not a good decision for anyone who believes there are Constitutional limits on the federal leviathan.
If the commerce clause trumps the 10th Amendment, does it also trump the 2nd Amendment?
You need to think long and hard about whether you want the Feds asserting indefinite control over the use of any property that happens to travel across state lines. I do believe most FReepers would consider that outcome a travesty.
Using the commerce clause to let the moral busybodies dictate to a supposedly free people. Sad.
Assisted suicide is neither interstate nor commerce...even under the 2005 definition of commerce...which is most definitely far more expansive than the 1787 definition of commerce
The best, most concise explanation of the real extent of the Commerce Clause was provided by Justice Thomas in his concurrence in the 1995 Lopez case
I'd like Nino to splain where the hell he found that in the text, the hypocritical bastard.
"Assisted suicide is neither interstate nor commerce."
It doesn't have to be. It is the drugs that are regulated under Interstate Commerce.
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