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]

"It is more likely that congressional leaders understood that they had no authority to ban the sales of liquor within a state."

Do you have anything to back this up?

The reason I ask is that the 21st amendment not only repealed the 18th (Section 1), but it also removed the power from the federal government and placed it exclusively with the states (Section 2).

Now, if the federal government did not have the power, why the need for Section 2? Just simply repeal the 18th, and that's it.

[BikerNYC]

Section two reads:

2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

This section gives states power over interstate commerce by allowing them to prohibit the importation of alcohol into the state. In effect, Congress is giving up some of its interstate commerce power to the states.

Is it your position that Congress can regulate the use of any product in any state for any purpose unless their is a constitutional provision directly prohibiting it from doing so (e.g. Second Amendment issues)?

[robertpaulsen]

"Is it your position that Congress can regulate the use of any product in any state for any purpose unless their is a constitutional provision directly prohibiting it from doing so (e.g. Second Amendment issues)?"

It is, and has been, my position that Congress may regulate interstate commerce. IF (and only if) some intrastate activity substantially affects Congress' interstate regulatory efforts, then Congress may use the power of the Necessary and Proper Clause to legislate that intrastate activity.

I don't understand your second amendment reference.

[BikerNYC]

Even using that standard, how does 50 or so people a year in Oregon who seek the help of a doctor to end their lives using FDA approved drugs "substantially affect" Congress' regulation of interstate transportation of drugs? Physician assisted suicide under Oregon's law accounts for only one-seventh of one percent of all deaths in the state. It is de minimus.

If Congress wants to do this, it should do what it did with raising the drinking age - condition the receipt of federal funds on not allowing doctor assisted suicide. Then the citizens of Oregon can make a choice.

One might think ahead to an anti-death penalty Congress that seeks to outlaw the death penalty in the states by using its interstate regulatory power to prohibit the use of electricity, drugs, gas, rope, guns, etc., for any purpose that leads to the death of a human being.

(The Second Amendment reference referred to the Constitutions explicit granting of the people's right to keep and bear arms. Could Congess, using its interstate regulatory power, prohibit the use of guns to kill deer?).

[robertpaulsen]

"how does 50 or so people a year in Oregon"

Certainly it would unconstitutional to legalize suicide drugs for only these few. It would have to be open to every American citizen in every state, wouldn't it?

That's more than 50. And that's how the USSC would look at it (as they did in Wickard v. Filburn).

"One might think ahead to an anti-death penalty Congress that seeks to outlaw the death penalty in the states by using its interstate regulatory power to prohibit the use of electricity, drugs, gas, rope, guns, etc., for any purpose that leads to the death of a human being."

Well, they can always try. But they do answer to the voters, don't they?

"(The Second Amendment reference referred to the Constitutions explicit granting of the people's right to keep and bear arms. Could Congess, using its interstate regulatory power, prohibit the use of guns to kill deer?)."

Congress has used the interstate Commerce Clause power in the past to regulate guns -- the short-lived federal AWB was implemented this way. I can see how the federal government can ban a class of weapons this way, but not its application.

A better way would be to declare deer an endangered species, yes?

[publiusF27]

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.

I never said stretching the commerce clause beyond all reasonable bounds was not popular, I just said it was (is) not Constitutional in the sense of being far beyond the intention of Madison.

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?

Didn't you just say that if a spineless court rolls over and lets Congress do whatever Congress wants with the commerce power, that's really not a problem because we can elect a new Congress?

OK, if a spineless court wants to allow Congress to decide upon "reasonable" restrictions on the first amendment, and wants to allow legislators max discretion in determining the meaning of "public use," why are you not in those cases inclined to say that the Court should not reel them in, the politicians themselves should restrain themselves in response to public pressure?

Meanwhile, you've still said nothing to convince me that the practice of medicine in Oregon or California must inevitably spread and influence commerce across state lines. I still see those things as things Madison would say are 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. I believe that if he knew we would one day be arguing over whether a homegrown cannabis plant or machine gun for personal consumption was interstate commerce, he would have entertained a few more apprehensions about that new power.

[publiusF27]

Certainly it would unconstitutional to legalize suicide drugs for only these few. It would have to be open to every American citizen in every state, wouldn't it?

I don't know about the other states, but if a drug were approved for assisted suicide by the feds, and a doctor in Florida then used those drugs to assist a patient in suicide, that doctor would have a serious problem with the STATE regulatory authorities (remember them?)

Congress has used the interstate Commerce Clause power in the past to regulate guns -- the short-lived federal AWB was implemented this way. I can see how the federal government can ban a class of weapons this way, but not its application.

And yet they aren't banning the drugs in Oregon in question. They are banning a particular application. The difference?

In California, they've banned cannabis entirely. If they quit banning those things in those states, it would still be illegal to assist suicide or smoke pot in Florida.

[publiusF27]

the short-lived federal AWB

Did those ten years of paying extra high prices for mean looking weapons and magazines of greater than ten round capacity seem short to you?

They seemed long to me.

[robertpaulsen]

"in the sense of being far beyond the intention of Madison."

Madison's intention?

Do you think it was Madison's intention to let each state regulate airline traffic within the state such that they flew at their own state-designated altitudes, on their own frequencies, their own traffic patterns ... despite the fact that the federal government was regulating interstate airline traffic? Ditto for the assignment of TV, radio, cellular, and other frequencies?

Please. Convince me that this would encourage commerce and be good for the country. I could use a good laugh.

You got this bug up your butt about drugs, and you want to twist and distort the constitution, throwing the country under the bus, just to legalize them. What's up with that?

"Didn't you just say that if a spineless court rolls over and lets Congress do whatever Congress wants with the commerce power, that's really not a problem because we can elect a new Congress?"

There's enough blame to go around. Congress had nothing to do with Roe v. Wade, sodomy, or eminent domain. And in the case of CFR, they and the USSC are equally culpable.

"I still see those things as things Madison would say are 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."

They are, absent any federal legislation that would supercede it.

"I believe that if he knew we would one day be arguing over whether a homegrown cannabis plant or machine gun for personal consumption was interstate commerce, he would have entertained a few more apprehensions about that new power"

They're NOT interstate commerce. Growing and possessing a cannabis plant has a substantial effect on the interstate commerce that Congress is currently regulating. There is a Congressional finding to this effect, and is contained within the legislation. Since it has a substantial effect, Congress may legislate growing and possessing a cannabis plant.

Now, if you truly believe that millions of people across the United states growing cannabis would have no effect on Congress' interstate regulatory efforts, then you're speaking from an agenda and not common sense and there is nothing I can say to convince you otherwise.

So I won't even bother to try.

[robertpaulsen]

"And yet they aren't banning the drugs in Oregon in question. They are banning a particular application. The difference?"

I've explained the difference. A better gun analogy would be allowing the purchase of an AR-15, but not the M-16. Same gun, different features.

[robertpaulsen]

Yeah, every month when I went to my gun store to buy yet another AB-10 and XM-15, along with 10,000 rounds of ammo and 50 "pre-ban" magazines at those inflated prices ... just made me sick.

[publiusF27]

Do you think it was Madison's intention to let each state regulate airline traffic within the state

Sure, if the states were very stupid and wanted to do that, and if they were not using that power to prevent carriers from other state from engaging in interstate commerce. But Madison probably would have pointed out the advantages of just turning over control of the state's airspace to the federal ATC system.

Growing and possessing a cannabis plant has a substantial effect on the interstate commerce that Congress is currently regulating. There is a Congressional finding to this effect, and is contained within the legislation.

Just because Congress says something does not make it true.

Here's part of Justice Thomas' response to their quite unbelievable assertion:

The majority holds that Congress may regulate intrastate cultivation and possession of medical marijuana under the Commerce Clause, because such conduct arguably has a substantial effect on interstate commerce. The majority’s decision is further proof that the “substantial effects” test is a “rootless and malleable standard” at odds with the constitutional design. Morrison, supra, at 627 (Thomas, J., concurring).

The majority’s treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce–any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers. Lopez, supra, at 589 (Thomas, J., concurring). Whatever additional latitude the Necessary and Proper Clause affords, supra, at 9—10, the question is whether Congress’ legislation is essential to the regulation of interstate commerce itself–not whether the legislation extends only to economic activities that substantially affect interstate commerce. Supra, at 4; ante, at 5 (Scalia, J., concurring in judgment).

The majority’s treatment of the substantial effects test is malleable, because the majority expands the relevant conduct. By defining the class at a high level of generality (as the intrastate manufacture and possession of marijuana), the majority overlooks that individuals authorized by state law to manufacture and possess medical marijuana exert no demonstrable effect on the interstate drug market. Supra, at 7—8. The majority ignores that whether a particular activity substantially affects interstate commerce–and thus comes within Congress’ reach on the majority’s approach–can turn on a number of objective factors, like state action or features of the regulated activity itself. Ante, at 6—7 (O’Connor, J., dissenting). For instance, here, if California and other States are effectively regulating medical marijuana users, then these users have little effect on the interstate drug trade.6

The substantial effects test is easily manipulated for another reason. This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U.S., at 613 (“[T]hus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature” (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “ ‘the production, distribution, and consumption of commodities.’ ”7 Ante, at 23 (quoting Webster’s Third New International Dictionary 720 (1966) (hereinafter Webster’s 3d). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 8—9 (O’Connor, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

Why is Thomas wrong?

You seem to have a bug up your butt about anything that threatens expanding federal power. What's up with that?

[airborne502]

One of many.

[publiusF27]

Congress had nothing to do with Roe v. Wade, sodomy, or eminent domain. And in the case of CFR, they and the USSC are equally culpable.

Congress did not write the New London Development Plan, it is true, but it was deference to legislators (just like you think should be applied in the case of the commerce clause) which led to the majority opinion in the Kelo case.

I don't like letting politicians decide whether something is public use. Everything looks like a nail when you're holding a hammer. I don't like letting politicians decide whether something is (or substantially affects) interstate commerce, for the same reason. I don't want that kind of deference to politicians when it comes to which restrictions on their competition's ability to communicate are "reasonable."

Here's a nice excerpt from Thomas' dissent in Kelo.

A second line of this Court’s cases also deviated from the Public Use Clause’s original meaning by allowing legislatures to define the scope of valid “public uses.” United States v. Gettysburg Electric R. Co., 160 U.S. 668 (1896), involved the question whether Congress’ decision to condemn certain private land for the purpose of building battlefield memorials at Gettysburg, Pennsylvania, was for a public use. Id., at 679—680. Since the Federal Government was to use the lands in question, id., at 682, there is no doubt that it was a public use under any reasonable standard. Nonetheless, the Court, speaking through Justice Peckham, declared that “when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation.” Id., at 680. As it had with the “public purpose” dictum in Bradley, supra, the Court quickly incorporated this dictum into its Public Use Clause cases with little discussion. See, e.g., United States ex rel. TVA v. Welch, 327 U.S. 546, 552 (1946); Old Dominion Land Co. v. United States, 269 U.S. 55, 66 (1925).

There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a “public use.” To begin with, a court owes no deference to a legislature’s judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the “public purpose” interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature’s determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e.g., Payton v. New York, 445 U.S. 573, 589—590 (1980), or when a convicted double-murderer may be shackled during a sentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U.S. ___ (2005), or when state law creates a property interest protected by the Due Process Clause, see, e.g., Castle Rock v. Gonzales, post, at __; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972); Goldberg v. Kelly, 397 U.S. 254, 262—263 (1970).

Still worse, it is backwards to adopt a searching standard of constitutional review for nontraditional property interests, such as welfare benefits, see, e.g., Goldberg, supra, while deferring to the legislature’s determination as to what constitutes a public use when it exercises the power of eminent domain, and thereby invades individuals’ traditional rights in real property. The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, supra, at 601, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,” ante, at 18, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does, ante, at 6, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it.

Thomas is right, and whether you're talking about reasonable restrictions on my second amendment rights, my first amendment rights, my ability to do things that politicians SAY affect interstate commerce, or my ability to own property that politicians SAY could be put to a use more beneficial to the public, I don't like that kind of "complete deference" to politicians.

[robertpaulsen]

"Sure, if the states were very stupid

States acting stupid was the reason for the creation of the Commerce Clause! Geez Louise.

So, according to you, states should be free to set their own flight rules and use the spectrum however they wish, despite the fact that the federal government already regulates this activity. And this would promote commerce, right?

"Just because Congress says something does not make it true."

Ah. Who, then, shall be the judge of what is true? The court? Fine, the court said it was true.

"Why is Thomas wrong?"

Why? Did you read Scalia's opinion (whose opinion was in the majority)? That's why.

[publiusF27]

I did indeed read Scalia's opinion. It was in line with the lefty majority opinion, and I'm not sure why he wrote separately.

He said that we've been doing it like this, so we're going to keep doing it like this. Stare decisis.

Thomas said we should revisit the substantial effects test and the aggregation principle.

Scalia's decision was based on Wickard vs Filburn. Thomas' was based on things like Federalist 45, as noted in the earlier excerpt.

Scalia didn't look that far back. New Deal judges said that if some private action affects interstate commerce in the aggregate, Congress can regulate it. Scalia said stare decisis.

Citing Scalia doesn't answer my question because Scalia's ruling has nothing to do with Madison's intent. Thomas' dissent does. Unless I'm wrong. Am I wrong? If so, why?

[publiusF27]

So, according to you, states should be free to set their own flight rules and use the spectrum however they wish, despite the fact that the federal government already regulates this activity. And this would promote commerce, right?

Flight rules are derived from previous rules on the ocean, and navigation rules, even at the time of the founding, were widely recognized as a federal responsibility. You can't navigate without common rules. You'll crash into each other. No, splitting up into 50 airspace systems would not promote commerce, and I never suggested it would. I suggested it was a stupid reducto ad absurdium that Madison would have dismissed as a bad idea, and it is.

But just because we need common rules to keep planes apart in the air does not mean we need common rules about exactly how certain drugs may be used across the land.

[publiusF27]

You said they could ban certain types of guns under the commerce clause, but not a particular application of guns, such as deer hunting.

I've looked for your explanation, but didn't find one and still don't see why there is this difference. Setting aside for the moment the argument about illegal drugs, for legal drugs, they are ALSO banning certain applications, such as assisted suicide. Drugs are legal, but only for federally approved applications.

The gun is legal, and must be legal for hunting if the state says hunting is OK.

The drug is legal, but cannot be legal for assisted suicide, even though the state says that's OK, because the Congress says it is not an approved drug use.

So if Congress embarked on a regulatory scheme (to which is due all the deference in the world, of course) to regulate deer hunting by abolishing it nationwide, and they said yeah, guns are legal, but not if used for the application of shooting deer, why would that not supercede state hunting laws?

It seems like, based on your logic, it must. Explain the difference (again?)

[robertpaulsen]

You keep referring to Madison's intent. 1) You need to define this, with a quote so I know what you're talking about.

Are you referring to "original intent" and are you saying that "original intent" is "sole intent"? In other words, are you saying it was Madison's intent that the Commerce Clause be used exclusively for the purpose for which it was written and no other? 2) I'll need to see proof of that if that is your claim.

The original intent of the meaning of "to regulate" was "to facilitate" commerce. But as early as the late 1800's, "to regulate" included "to ban". Are you saying that Congress cannot ban commerce because Madison didn't originally write the Commerce Clause to ban commerce, but to facilitate commerce?

In 1824, in Gibbons v Ogden, Chief Justice (and Founding Father) John Marshall stated, "The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government."

Seems to me he's saying that IF completely intrastate activity affects other states, Congress may interfere.

James Madison was still alive in 1824. Why didn't he comment on this? Why didn't he say, "Hey! That wasn't my intent! My intent was interstate commerce only!"

[robertpaulsen]

"but not if used for the application of shooting deer"

I know what you're trying to say, but it's simply not a good analogy to comment on. There's too many things wrong with it.

Suffice to say that IF Congress passed a constitutional law, then, yes, that law would supercede any state law to the contrary (under the Supremacy Clause). But, the USSC may allow the state law to continue, leaving it up to the federal government to enforce the "no hunting deer with a gun" federal law.

This is what's happening today with the medical marijuana laws. You can't be arrested by the state in the states where it's legal, but the feds can arrest you.

This may be the end result in Oregon, where assisted suicide is legal by the state, but the feds may be able to arrest the doctor.