Putting Federalism to Sleep (The wrong way to argue against assisted suicide)

The Weekly Standard ^ | October 31, 2005 | Nelson Lund

[RWR8189]

 

THE BUSH ADMINISTRATION CLAIMS THE authority to stop Oregon physicians from using prescription drugs to implement that state's unique program of physician-assisted suicide. But the administration's effort to use an ambiguous federal drug statute to undermine Oregon's assisted suicide law is a betrayal of conservative legal principles. Gonzales v. Oregon, argued before the Supreme Court earlier this month, may give an early signal about the commitment of the emerging Roberts Court to those principles. And the Court's decision could have unexpected implications for a range of other issues, including future policies about abortion.

Like the administration, I believe that the people of Oregon made a terrible mistake when they voted in two separate popular referenda to authorize Oregon doctors to help their patients commit suicide. Physicians are uniquely empowered by their technical knowledge and the nature of their work either to heal or to kill, and their patients know it. For millennia, the chief safeguard against abuse of this power has been the Hippocratic ethic, which forbids a doctor from seeking to hasten the death of any patient. That ethic was compromised when physicians began to violate a related Hippocratic prohibition of abortion, and it has continued to crumble in the face of pressures for doctors to make moral decisions (masquerading as medical decisions) about whose life is worth preserving. The Oregon law is a step along the path toward a world of legalized euthanasia in which seriously ill people will have good reasons to worry about what their doctors are up to.

Unlike the Bush administration, however, I believe the voters of Oregon are adults who are entitled to make their own decisions about this important policy question, even if they disagree with me. Among the signal achievements of the late Chief Justice Rehnquist was his long crusade to revive the constitutional principle of federalism. That principle demands that the people of each state be allowed to govern themselves as they see fit, so long as their decisions are not forbidden by the Constitution itself (as in certain decisions involving racial discrimination) or by federal statutes covering issues assigned by the Constitution to the jurisdiction of Congress (such as the regulation of foreign and interstate commerce).

The constitutional principle of federalism suggests that Oregon's assisted suicide law should be immune from congressional interference. Virtually all of the people affected by Oregon's law will be Oregonians, and there is nothing in Oregon's decision that will interfere with other states' ability to choose a different policy in regulating their own physicians. In any event, Congress has not clearly authorized the Bush administration to interfere with Oregon's decision. The federal statute generally requires that doctors with state licenses to prescribe drugs be given a federal license as well. Federal authorities do have a vaguely worded authorization to yank the licenses of doctors who behave irresponsibly, which was aimed at allowing federal agents to quickly shut down doctors who set up shop as drug dealers. The Bush administration is using this provision to claim a power to override any state law involving prescription drugs if the attorney general disagrees with that state's chosen policy about the proper use of such drugs.

The drug statute can easily be interpreted to leave policy decisions about medical practice to the states. The statute does not clearly grant the authority the administration is claiming, and it might be unconstitutional if it did. In any event, there was absolutely no necessity for the administration to claim this power (which reversed the Justice Department's previous position). This is a legally gratuitous departure from the principle that the states are free to manage their own internal affairs unless a valid federal law clearly constrains their discretion.

There may be further implications. If the Roberts Court eventually overrules Roe v. Wade, as I believe it should, the abortion issue will return to the democratic processes of each state, which is where it lay before the Supreme Court usurped state authority. We can be sure that interest groups on both sides of that issue--none of which is likely to have enough political support to obtain a clearly worded federal statute, let alone a constitutional amendment--will seek to get future administrations to attack state laws they disagree with, using maneuvers like the one the Bush administration has adopted here.

Assisted suicide is a serious issue. So is abortion. Less visibly, but no less important, this case involves the obligation of judges to be faithful to the constitutional principle of federalism. That principle should be especially significant in guiding the resolution of controversial issues, but the principle seldom has a strong political constituency. For that reason, whatever our views on assisted suicide and abortion, we should all hope that in this case the new chief justice will be true to Rehnquist's spirit rather than to the will of the president who appointed him.

 

Nelson Lund teaches at George Mason University School of Law in Arlington, Virginia.

[robertpaulsen]

Certain drugs are approved by the federal government because they have a positive medical use. They are not federally approved for negative medical use.

If doctors wish to assist their patients in committing suicide, they'll have to find another way.

[robertpaulsen]

"Among the signal achievements of the late Chief Justice Rehnquist was his long crusade to revive the constitutional principle of federalism."

What did he do -- repeal the due process clause of the 14th amendment all by himself?

[Alberta's Child]

There is a serious lack of consistency among a lot of folks who are taking the side of the state of Oregon on this issue. It seems impossible to me for someone to side with Oregon in this case without also acknowledging that the mere existence of the U.S. Food and Drug Administration is unconstitutional.

You can't have it both ways, folks.

[publiusF27]

It seems impossible to me for someone to side with Oregon in this case without also acknowledging that the mere existence of the U.S. Food and Drug Administration is unconstitutional.

No, I wouldn't go that far. There are interstate transactions in food and drugs, and states might try various protectionist measures against each other, and a US FDA could be empowered by the commerce clause to prevent that kind of thing. That's what the commerce clause was primarily intended to do: create a common American marketplace to present to the world.

But it is nonsense to say that what some individual does with a lethal drug, or a non-lethal one for that matter, somehow affects interstate commerce, and therefore can be regulated by the feds.

Madison in Federalist 45:

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. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.

So tell me, is killing yourself properly a concern of the national marketplace, or is it more among 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?

How about growing your own cannabis plant?

Or machine gun?

[publiusF27]

How far we've come.

"Unless we put medical freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship to restrict the art of healing to one class of men and deny equal privileges to others: The Constitution of this Republic should make a special privilege for medical freedom as well as religious freedom." - -- Dr. Benjamin Rush, signer of the Declaration of Independence

[hinckley buzzard]

acknowledging that the mere existence of the U.S. Food and Drug Administration is unconstitutional.

Welcome to the "commerce clause."

[robertpaulsen]

"So tell me, is killing yourself properly a concern of the national marketplace, or is it more among 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?"

Ah, so you think the federal government is objecting to Oregon allowing assisted suicude, huh?

[robertpaulsen]

Well, that didn't happen, did it? Plus, we have too much medical freedom -- by law, a patient must be treated by a private entity without assurance of compensation. I thought involuntary servitude was against the 13th amendment.

[Sir Francis Dashwood]

Article the seventh [Amendment V]

No person shall be... deprived of life, liberty, or property, without due process of law;

Article. XIV.

Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall... deprive any person of life,... without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[publiusF27]

Yeah, it seems that way to me.

For examples.

The Supreme Court appeared closely divided Wednesday over whether the U.S. attorney general can override the wishes of Oregon voters and ban the use of drugs to hasten the death of terminally ill patients, with retiring Justice Sandra Day O'Connor as perhaps the key swing vote.

---

The Oregon assisted-suicide case stems from the 1994 passage by state voters of the Death with Dignity Act, which allows mentally competent and terminally ill patients to obtain death-hastening medications. When the law, the only one of its kind nationwide, survived legal challenges and took effect in 1997, then-Attorney General Janet Reno decided she did not have the authority under the Controlled Substances Act to punish doctors or pharmacists for actions taken under the Oregon law.

Reno's successor, John Ashcroft, was a longtime opponent of assisted-suicide measures. When he took office he reversed her determination, finding that assisting suicide is not the kind of "legitimate medical purpose" that allows for exceptions to be made under the federal law. The change was made without a public comment period or other procedures that usually accompany new regulations. Oregon challenged Ashcroft's rule change, winning at both the district court and appeals court levels.

Wednesday, Solicitor General Paul Clement defended the Ashcroft decision, since adopted by Attorney General Alberto Gonzales, as part of a history of a strong federal role in drug enforcement.

But he was immediately hit with skepticism, as several justices asked him if a future attorney general who opposes the death penalty could unilaterally ban use of the drugs needed for legal injections in spite of state capital punishment procedures. Clement sidestepped the question by arguing that the possibility had been foreclosed by a 1994 federal death penalty law that adopts execution procedures that are in force in the various states.

Clement also argued that the government's position does not entirely stop Oregon from allowing assisted suicide. He noted that Dr. Jack Kevorkian, who was prosecuted for helping patients kill themselves, used drugs that are not forbidden under the CSA. But Justices David Souter, Ruth Bader Ginsburg and Anthony Kennedy, along with O'Connor, seemed dubious, with Kennedy calling it "an odd statutory scheme" if the federal government can prohibit use of a drug that Oregon law allows to be prescribed. Justices seemed struck, also, that Ashcroft's unilateral action seemed to be unique in the history of drug regulation.

Making the state's case, Oregon Senior Assistant Attorney General Robert Atkinson emphasized the "200-year history" of the pre-eminence of states in regulating the practice of medicine.

But Roberts asked whether allowing different rules in different states would "undermine uniformity" of federal drug law enforcement.

Atkinson said that state-by-state differences were not that uncommon. He noted that certain drugs used for palliative care are allowed in some states but not others. "There is no history," Atkinson said, of the attorney general enforcing drug laws against "a doctor who acts according to state law."

But Justice John Paul Stevens seemed to think that, as written, the CSA has language that authorizes the attorney general to supersede state laws in the interest of "public safety." Justice Antonin Scalia also seemed supportive of federal power in this instance. If Justices Stevens, Roberts, Scalia and Clarence Thomas side with the government, O'Connor could hold the decisive vote.

[publiusF27]

Although what makes that author think Clarence Thomas would side with the US govt in this case is beyond me after his dissent in Raich.

[robertpaulsen]

The government is not objecting to Oregon permitting assisted suicide. States have the right to do so.

The government is objecting to the use of controlled substances to assist suicide -- that doctors in the State of Oregon are using drugs for purposes not intended, nor approved, by the government.

[publiusF27]

And exactly how a drug gets used should be the decision of the federal government, not the state governments because...?

It seems to me that exactly how an individual and his doctor decide to practice medicine is more among 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, and thus a state government concern.

[publiusF27]

So Oregon can permit assisted suicide, and it can permit these drugs in other applications, but it can't permit these drugs to be used for assisted suicide.

But the feds aren't prohibiting assisted suicide, because you said they can't do that. They are merely prohibiting an unintended and unapproved use of a drug, and that use just happens to be assisted suicide, but it's not the assisted suicide that's being prohibited, it's exactly HOW they are assisting suicide that's being prohibited.

And if they don't assist suicide just right, interstate commerce will be impeded, so this is not just the business of the state of Oregon, but it's a federal matter.

Have I got it right?

[robertpaulsen]

"And exactly how a drug gets used should be the decision of the federal government, not the state governments because...? "

... because Congress has exercised its power under the Commerce Clause to regulate drugs.

"It seems to me that exactly how an individual and his doctor decide to practice medicine is more among 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, and thus a state government concern."

I agree. Unless, of course, that practice includes the dispensing of controlled substances. Then it becomes a federal concern.

[robertpaulsen]

"So Oregon can permit assisted suicide, and it can permit these drugs in other (approved - rp) applications, but it can't permit these drugs to be used for assisted suicide."

Correct.

"But the feds aren't prohibiting assisted suicide, because you said they can't do that. They are merely prohibiting an unintended and unapproved use of a drug, and that use just happens to be assisted suicide, but it's not the assisted suicide that's being prohibited, it's exactly HOW they are assisting suicide that's being prohibited."

Correct.

"And if they don't assist suicide just right, interstate commerce will be impeded, so this is not just the business of the state of Oregon, but it's a federal matter."

Using controlled substances in a manner for which they are not approved affect the safety and welfare of citizens. It would be both necessary and proper for Congress to legislate this activity if they so chose.

[publiusF27]

So anything that affects safety and welfare thereby affects interstate commerce, and can fall within the wide net of the commerce clause. That's why we've had commerce clause laws and cases about whether growing your own wheat is interstate commerce, whether being near a school with a gun is interstate commerce, whether rape is interstate commerce, whether partial birth abortion is interstate commerce, whether designing and building your own machine gun is interstate commerce, whether growing your own cannabis is interstate commerce, whether a certain California toad is interstate commerce, and on and on.

Few and defined powers, as Mr. Madison promised?

Well, one of them certainly seems to be the Swiss Army Knife of federal powers, giving Congress control over anything that Congress says affects interstate commerce. As O'Connor noted, the Court reduced Lopez to a drafting guide and gives the federal government control over, as you said, the safety and welfare of the citizenry.

Hey, isn't safety and welfare of the citizenry another way of saying 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?

[robertpaulsen]

"So anything that affects safety and welfare thereby affects interstate commerce, and can fall within the wide net of the commerce clause."

No, not "anything". The courts have ruled that, "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin."

"Few and defined powers, as Mr. Madison promised?"

The Commerce Clause is but one of the powers granted to Congress. It's powerful, it has to be, but it is only one power.

"It is unnecessary to repeat what has frequently been said by this court with respect to the complete and paramount character of the power confided to Congress to regulate commerce among the several states. It is of the essence of this power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local government. The purpose was to make impossible the recurrence of the evils which had overwhelmed the Confederation, and to provide the necessary basis of national unity by insuring 'uniformity of regulation against conflicting and discriminating state legislation."
-- Mr. Justice Hughes, The Shreveport Rate Cases (1914)

"Hey, isn't safety and welfare of the citizenry another way of saying 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?"

Yes, but while safety and welfare is the role of the state, it is not the exclusive role of the state, especially when the threat to safety and welfare comes from without.

[publiusF27]

No, not "anything". The courts have ruled that, "Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other States from the State of origin."

And Justice Thomas has dissented that, Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. 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.

I think he was right about that.

Interstate trade was not left to be destroyed or impeded by the rivalries of local government.

---

Yes, but while safety and welfare is the role of the state, it is not the exclusive role of the state, especially when the threat to safety and welfare comes from without.

I fail to see how patients smoking pot under California law in California, or killing themselves with a doctor's assistance in Oregon under the medical laws of that state, will "destroy or impede interstate trade" or represent a "threat to my safety and welfare" way over here in Florida.