Posted on 10/23/2005 3:45:57 PM PDT by 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.
"The law may be challenged and, if found unconstitutional, may be removed. Until that time, it is indeed the law." -- freeper robertpaulsen.Indeed the law, indeed. Dred Scott's Chief Justice was such a positivist -- and Catholic too. There's an overlap, the papal infalibility doctrine is positivism in clerical robe, the training of a good Catholic tends one strongly towards legal positivism."Individual liberty cannot be preserved if the majority’s will must always triumph. My view is admittedly a bit skewed. My heritage includes not only the middle passage but the trail of tears; not only the rhythms of midnight trains but the terror of midnight riders; Jim Crow and Jim Dandy; whited sepulchres and colored fountains.
Anyone with that kind of history will tell you quite emphatically that the positive law is not enough. Never enough. When I was growing up the positive law declared that some people were more equal than others. But that law, judged by a higher law, was wrong." -- Judge Brown, same cite.
Not particularly. What's to be afraid of? Unattributed and unsupported conclusions? It's nothing more than someone else's opinion, who conveniently isn't available to question as to the source of their information.
Where's your source that it was a military road?
What's yours? Some anonymous speculation posted on a web page. You won't render an opinion of your own, you have to borrow someone else's to hide behind.
Endless fabrication.
Troll bait.
And lacking such a ruling, you're saying these laws are unconstitutional and, as such, do not have legal standing and are not to be obeyed?
195 posted by robertpaulsen (I'm debating 3rd graders now.)
If you read past the third grade level, you will find that Marshall makes that very point in Marbury..
What's yours?
The National Road, in many places known as Route 40, was built between 1811 and 1834 to reach the western settlements. It was the first federally funded road in U.S. history. George Washington and Thomas Jefferson believed that a trans-Appalachian road was necessary for unifying the young country.U.S. Department of Transportation
Construction of the National Road began in 1811. The cost of the road averaged about thirteen thousand dollars per mile. Gallatin suggested that the federal government construct the road. He also arranged the finances of the nation to allow the federal government to pay for the road without falling deeper into debt. The National Road was opened from Cumberland, Maryland to Wheeling, West Virginia, as a transportation route in 1818.
Now, where's the source for the false assertion that it was a military road?
I guess it's time for you to tuck tail.
Again.
Your rhetoric is as tired as it is false, tpaine.
Nine Scalias would be nine votes against the druggies.
You keep saying saying it, but the assertions you quote don't address cultivation and distribution controls.
Points you've repeatedly ducked.
What "freedom" are you referring to? The "freedom" to manufacture and distribute illicit drugs?
Is that what Madison meant?
Scalia voted against the federal gun legislation in the Lopez decision.
Next falsehood, please.
It's time for you go back to wherever you've been, Roscoe.
He was a convicted felon selling machine guns over the Internet. Odd that you left that out.
It's time for you go back to wherever you've been, Roscoe
You don't like having falsehoods exposed? Don't make 'em then.
Am I just simple? If the Federal Government may override a state law allowing the medical use of marijuana, then why cannot it override a state law allowing the medical use of poisons?
You've repeatedly refused to address cultivation and distribution. Because you can't.
Scalia:
Today’s principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces Lopez and Morrison to “little more than a drafting guide.” Post, at 5 (opinion of O’Connor, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective...By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish “controlled substances manufactured and distributed intrastate” from “controlled substances manufactured and distributed interstate,” but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market–and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.3 See ante, at 23—30. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for “medical” marijuana and the more general marijuana market. See id., at 26—27, and n. 38. “To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution.”
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