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.

[publiusF27]

My short list of things which are NOT interstate commerce:

Growing your own wheat

Growing your own cannabis

Growing your own machine gun

Being Near a School With a Gun

Rape

Assisted Suicide

Partial Birth Abortion

Possession of kiddie porn

Certain California toads

The Supreme Court disagrees with me (well, except about the toads, I guess) but I'm undeterred. ;-)

[airborne502]

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,

Congress says that wheat growing can "harm" the wheat market.

whether being near a school with a gun is interstate commerce,

Obviously "evil" - to congress.

whether rape is interstate commerce,

Rape harms, thus is evil, giving congress the power to control it twice.

whether partial birth abortion is interstate commerce,

Abortion is immoral, harms, and is evil, giving congress the power to control it three time over.

whether designing and building your own machine gun is interstate commerce,

Guns are evil, immoral, have the potential of harm, and, -- it is dishonest to claim anyone needs a machine gun. -- Four reasons for congressional control.

whether growing your own cannabis is interstate commerce, whether a certain California toad is interstate commerce, and on and on.

As we see, Congress has unlimited power to control immorality, dishonesty, evil or harm..
Long live the Republic!

[publiusF27]

I imagine the conversation between the feds and the State of Oregon...

Feds: You can use these drugs, but only for these purposes.

Oregon: We're going to let our doctors prescribe them to assist in planned suicides.

Feds: OK, well your doctors can tell patients how to kill themselves, but not with any drugs.

Oregon: Well approve these drugs for this use.

Feds: No, we can't approve those drugs for that use, it's not safe. It'll kill patients.

Oregon: OK. Give me the Agriculture Department.

Ag Dept: Hello?

Oregon: Got any of those things they use to brain cows?

[robertpaulsen]

"And Justice Thomas has dissented that ..."

Well, now we're into something beyond interstate commerce.

If an intrastate activity substantially affects Congress' interstate regulatory efforts, then Congress has the power, under the Necessary and Proper Clause, to legislate that intrastate activity. Without that power, states and individuals could undermine and subvert Congress. Surely you don't think that's what the Founding Fathers had in mind?

"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."

Hmmmmm. That's a condition that seems to affect only those who are in favor of legalizing drugs.

[publiusF27]

Guns are evil, immoral, have the potential of harm, and, -- it is dishonest to claim anyone needs a machine gun. -- Four reasons for congressional control.

Now wait just a minute. Guns are inanimate, but fun, should be handled safely, and I really enjoyed it when my brother's FFL friend brought a machine gun out here for all of us to blaze away.

In Federalist 29, Alexander Hamilton said:

``The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

``But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.''

Hamilton is talking about assembling the "people at large" occasionally just to check and see whether we all have militia-appropriate weapons.

I have my militia appropriate weapons. You got yours? ;)

[publiusF27]

Without that power, states and individuals could undermine and subvert Congress. Surely you don't think that's what the Founding Fathers had in mind?

A Congress with power over, as Thomas said, "virtually anything?" They never had in mind creating such a Congress in the first place.

That's a condition that seems to affect only those who are in favor of legalizing drugs.

You mean people like Justices Thomas, Rhenquist, and O'Connor?

[robertpaulsen]

"A Congress with power over, as Thomas said, "virtually anything?"

Yeah, right. Thomas says that Congress has power over virtually anything at the same time that he's voting to remove that power from Congress in two USSC cases.

Wow. Some power that a mere five people could vote to take it away.

Oh, and if Thomas is worried about a governmental body that's out of control, he should look in the mirror -- sodomy, CFR, eminent domain -- what's up with that?

[airborne502]

publiusF27 wrote:

Surely you don't think that's what the Founding Fathers had in mind? A Congress with power over, as Thomas said, "virtually anything?" They never had in mind creating such a Congress in the first place.

But, but, but without that power, states and individuals could undermine and subvert Congress. Surely no one rational can think that's what the Founding Fathers had in mind? -- Who would ever believe that checks & balances on government powers could exist?
We have to have legislators that possess the unlimited power to control immorality, dishonesty, evil or harm..
Long live the Republic!

[BikerNYC]

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

Then why was a constitutional amendment needed for alcohol to be prohibited?

[robertpaulsen]

"Then why was a constitutional amendment needed for alcohol to be prohibited?"

It wasn't needed. Where did you read it was?

[publiusF27]

Well, I'd say it's more that Thomas complained of a Congress asserting power over virtually anything while voting against it, but the meaning is more or less the same.

And yes, the Court can (since it assumed the power) vote to reverse unconstitutional usurpations of power with a mere five people. The fact that it's just one clause, one power, and 5 could vote to change the way it is applied does not minimize the pervasive impact of the federal regulatory state empowered unwisely by expansive interpretations of the commerce clause.

Since you brought up eminent domain as if Thomas has something for which he should apologize, I encourage you to read his opinion in the Kelo case. I think it's quite good, and since he can't control the behaviour of the left wing of the Court, he should not apologize for it.

[BikerNYC]

Then why did they go through the trouble of passing one?

[publiusF27]

LOL! Are you robertpaulsen's alter ego?

[robertpaulsen]

"Then why did they go through the trouble of passing one?"

"An amendment to the Constitution obviously appealed to temperance reformers more than a federal statute banning liquor. A simple congressional majority could adopt a statute but, with the shift of a relatively few votes, could likewise topple one. Drys feared that an ordinary law would be in constant danger of being overturned owing to pressure from liquor industry interests or the growing population of liquor-using immigrants. A constitutional amendment, on the other hand, though more difficult to achieve, would be impervious to change. Their reform would not only have been adopted, the Anti-Saloon League reasoned, but would be protected from future human weakness and backsliding."
-- www.druglibrary.org/schaffer/history/rnp/RNP1.html

[jmc813]

Oh, and if Thomas is worried about a governmental body that's out of control, he should look in the mirror -- sodomy, CFR, eminent domain -- what's up with that?

Thomas voted against CFR and eminent domain.

[robertpaulsen]

"The fact that it's just one clause, one power, and 5 could vote to change the way it is applied does not minimize the pervasive impact of the federal regulatory state empowered unwisely by expansive interpretations of the commerce clause."

Uh-huh. And if we the people don't like what Congress is doing with the Commerce Clause, we have the opportunity every two years to start over.

What are we to do, however, with an arrogant court who believes that the 1st amendment does not allow political speech and that eminent domain allows private businesses to force citizens to sell their property? Where's our protection from your colleagues, Justice Thomas?

WHERE'S OUR RECOURSE, JUSTICE THOMAS?

[robertpaulsen]

And I'll bet there were some conservatives who didn't vote in favor of Commerce Clause legislation either.

If people can lump Congress as a group, then I can do the same for the USSC.

[jmc813]

Totally off topic, but I'm curious as to your thoughts on the Harriet Miers nomination.

[BikerNYC]

I disagree with that assessment. It is more likely that congressional leaders understood that they had no authority to ban the sales of liquor within a state. And while they might have been able to ban the interstate transportation of alcohol, they could not have banned the sale of booze made within a state.

In this case, the feds can regulate the interstate transportation of drugs, but they want to do more than that. They want to permit the interstate transportation, but regulate the use of a perfectly legal product within a state. They also seek to ban the use of drugs for particular purposes even if no interstate transportation is involved.

This case presents another perfect example of how the feds want to interfere with the affairs of a state by ignoring the plain meaning of the interstate commerce clause by extending it to all sorts of things that have nothing to do with interstate commerce.

[robertpaulsen]

"Totally off topic, but I'm curious as to your thoughts on the Harriet Miers nomination."

Well, I don't understand it but I think she'll be an improvement over O'Connor and may end up suprising a lot of conservatives (in a good way).

Personally, I would have preferred a knock-down, dragged-out, nuclear-option, in-your-face type of conservative nominee, but that's me. Probably would have helped the democRATS more than us, though.

I'm more surpised at the administration's recent stance on illegals.