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.
Yep. If Dubya tries to fob off another look-ma-no-paper-trail nonentity, he might as well just spend the rest of his term cutting brush in Crawford and put one of those cardboard standees behind his desk in the Oval Office.
Reasonable limitations to any of the amendments have always been constitutional. The argument lies solely on the definition of reasonable, and good men disagree.
For you to sit there and posit that what you believe is reasonable is indeed fact, why, that does take some cojones.
His database had thousands of customers in it. The guns he had in his possession at the time of his arrest were manufactured using items obtained in part through interstate commerce.
apologize for saying I was lying about Scalia's anti-gun ruling
The opinion was out of the Ninth Circuit.
Can you quote Scalia or are you blowing smoke?
Which, may I remind you, he wrote.
The clause is wide open. It doesn't say "some" commerce. It doesn't say Congress has only the power to "remove obstacles to commerce". It doesn't say, "the power to regulate only goods". It doesn't say "only commerce between states".
The power to regulate commerce among the several states. Pretty wide open and subject to legislative and judicial interpretation.
"Yet it is very certain that it grew out of ..."
Ah. A history lesson on the origin of the commerce clause. Yes indeed, the commerce clause grew from humble beginnings, but the wording does not reflect your contention that it was limited to "correcting injustices" -- I would think it could have been phrased differently, something like "the power to correct injustices between the states".
" Hmmm... implied powers over what Madison explicitly said ..."
The Necessary and Proper Clause is not an implied power -- it's an explicit Article I power granted to Congress to implement and enforce all other Article I powers. It's the only thing that stands between those "stupid" states you referenced and anarchy.
"I don't see most of the expansion of federal power since Wickard vs Filburn as constitutional"
The Necessary and Proper Clause is indeed constitutional.
"[T]he New Deal Court’s own constitutional justification for its radical expansion of the scope of federal power over commerce was that the congressional measures in question were valid exercises of the power granted by the Necessary and Proper Clause and were not direct exercises of the power to regulate commerce among the several states. That is, the Court did not simply and directly enlarge the scope of the Commerce Clause itself, as is often believed. Rather, it upheld various federal enactments as necessary and proper means to achieve the legitimate objective of regulating interstate commerce."
-- Stephen Gardbaum, Rethinking Constitutional Federalism, 74 Tex. L. Rev. 795, 807-08 (1996)
"any intent to grant such sweeping powers over, as Thomas said, "virtually anything."
Hah! "Virtually anything" does not include, of course, violence against women. Or guns near schools. Or anything else Clarence Thomas says.
"and you must admit that a politician not using a power is at least a strong indication that he does not believe he has that power."
Really? Care to explain why the federal AWB was not renewed?
I'll address those things when you show a need
Scalia:
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.Let's see if you keep your word.
Dicta fishing. Silveira vs Lockyer involved state, not federal, law. There was no legitimate Second Amendment issue for the Supreme Court to hear.
Or are you calling for the federal government to preempt state law, blind to the irony of your new stance?
Sure I can.
You didn't.
But, but, but drugs are the most important right of all!!!
(Their position it its nutshell.)
Excuse me, but we're discussing laws that are constitutional -- we're not discussing laws that are "right" or "wrong" based on some moral floating scale.
At least, I'm not -- you can go on with your theological discussion with someone else.
That's a keeper.
Look, here's the bottom line. If it is law, by definition, it's constitutional. UNTIL such time as it is ruled by the U.S. Supreme Court as unconstitutional. Get it?
(This was in response to a poster who (erroneously) claimed a federal law was constitutional because it was a popular.)
Yes. If the Court decides that the AG went beyond what the statute authorized or intended, then Oregon wins the case without the commerce clause question being reached. That's how I'm expecting the case to turn out, because the Court would rather avoid a Constitutional question if possible. *If* the Court decides that the statute *does* authorize the AG's actions, only then would the question of Congress' commerce clause power be addressed. That's my assumption anyway. I'm far from certain.
Do you mean to imply that a law is not constitutional until the U.S. Supreme Court says it is?
C'mon. I made my statement. Make yours.
Tell me that none of our laws are constitutional and, therefore, are invalid, until the U.S. Supreme Court rules that they are.
Or are you simply being contentious and wasting my time?
Here's the very point from Marbury v. Madison:
"So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."
Now, I could be wrong given my third-grade reading ability, but it sure as $hit looks like the court makes the determination.
Have you got anything that says the law is unconstitutional until the court says it is? Yeah, right.
Here's something to occupy you while we adults carry on with our debate.
You are the one who slams religion on the table like some side of ham and demand all eat of it. How? You make the Supreme Court a Pope, infallible, unquestionable. That is the extreme of "positivism".
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