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.
Vacated. You should know that. You quoted that docket entry when you fraudulently asserted it to be a Scalia quote.
You don't have the Scalia quote, because he didn't make it.
There won't be any quote until he writes his opinion, which hasn't happened.
He won't write his opinion until the Supreme court does, which hasn't happened.
The Supreme court won't write an opinion unti it decides the case, which it hasn't.
The Supreme court won't decide the case until it hears it, which it hasn't.
The Supreme Court won't hear the case until the Ninth Circuit issues its final order, which it hasn't.
The Ninth Circuit won't issue its final order until it has finished additional hearings for the parties and reconsidered the matter, which it hasn't.
Your fabrication is as multi-layered as a rotten onion.
I assumed you hadn't been locked in a closet and fed through the crack under the door for the last few decades.
Was I wrong?
Backwards. I pointed out that your self-contradicting argument said that.
paulsen says the opposite.
Oh? Looks like he pointed out the same tpaine fallacy to me.
You claimed it existed, not I.
A quote would be preferable to another one of your self-serving and disingenuous characterizations.
LOL! Why do I feel like Charlie Brown to your Lucy? Nah, not going to try to kick that football again! ;-)
The Supreme Court said that Stewart was remanded to the ninth for reconsideration IN LIGHT OF RAICH. They did not say IN LIGHT OF LOPEZ. So, how about a quote from you to justify your assertion way back at post number 213 that somehow Scalia's opinion in Lopez makes my assertion in post number 211 that he would vote against Stewart false?
What happened to your normally terse style? "No, I don't." would have been sufficient.
Unfortunately, that often isn't quite the case with regulatory agencies. It should only take 50% of either house of Congress to prevent a new law from coming into effect, but because of how Congress has (unconstitutionally, IMHO) delegated its authority, it takes 51% of both houses plus the President, or 2/3 of both houses, to stop an agency from passing new "regulations".
I don't think Thomas likes the way the left wing of the Court is seizing power for itself either. BTW, I think that a constitutionalist might have been able to find for Connecticut in the Kelo case, though it would have required a different rationale than I'm aware of anyone using.
What exact power does the federal government give up in USC18.2?
Could any power that the federal government gives up in USC18.2 be construed as dealing with anything other than interstate commerce?
I think Madison's intention would probably have been that, as such technologies developed, the Constitution would be amended so as to give the government the powers necessary to manage them effectively.
Suppose every new technology that really required new federal powers required a constitutional amendment. How many amendments would that be? A dozen or so? Seems far better than having courts make up the rules as they go along.
If a hardware store owner sells a 50' rope to someone who commits suicide, is he a murderer?
What if a department store clerk sells a knife to such a person?
From all I've read, Oregon's statute doesn't allow anyone to put poison into the patient's body other than the patient him/herself, and that only by the patient's deliberate action.
Congress should not have to accept on faith something which can be shown not to be true. But, there is nothing to show that California's regulation of designated medical marijuana has not been effective at preventing the spread of such in interstate commerce. Further, even if Congress does have the authority to regulate items which are likely to enter into interstate commerce, it should be the job of a jury to determine whether, in a particular case, such entry is likely.
What of parking valet who hands over the keys to the owner, intoxicated?
What of a long-haul driver who hasn't slept for 28 hours?
If certain facts are required to make an application of the law legitimate under the Constitution (e.g. that a particular person's possession of marijuana is likely to interfere with federal efforts to control trafficking of same into other states), the state should have to prove those facts to a jury (e.g. in the case of marijuana possession, convince a jury that the person was likely to give, sell, or otherwise transfer the marijuana in such a fashion that it was likely to go out of state). While it is true that the USSC is not a trial court, nor is Congress. The fact that Congress includes "findings of fact" should not make those findings any more factual than if someone posted them at D.U.
Maybe a jury? If a federal statute is predicated upon the claim that the activity it criminalizes affects interstate commerce, it should be a defense against prosecution to show that the particular activity being prosecuted did not affect interstate commerce in the manner of the more general activity. If a jury finds that to be the case, they acquit.
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