« The potentially illusory significance of *this* Padilla case | Main | Good Ayotte Analysis »

Tuesday, January 17, 2006

The Oregon case

Today's decision in Gonzalez v. Oregon -- which the press describes as "upholding Oregon's assisted-suicide law", probably because it sounds better than "Court declines to defer to agency's interpretation of regulation relating to 'legitimate medical purposes' under the Controlled Substances Act"! -- prompts these two quick thoughts:

First, do we think that Justice Thomas really believes that Raich and Whitman are "water over the dam"?

Next, Justice Scalia concludes his dissent with this:

The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality--for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U. S. 308, 321-323 (1913); Lottery Case, 188 U. S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.

This passage is, I think, powerful.  That said, is it so obvious that Congress lacks the power to prohibit assisted-suicide laws that, in effect, (a) identify a class of vulnerable persons and (b) exclude them from the protection of otherwise-generally-applicable no-exceptions-for-consent homicide prohibitions?  See generally Lee v. Oregon, 891 F. Supp. 1429 (D. Ore.1995) (concluding that Oregon's "Measure 16" "singles out terminally ill persons who want to commit suicide and excludes them from protection of Oregon laws that apply to others"), vacated, 107 F.3d 1382 (9th Cir. 1997).

Posted by Rick Garnett on January 17, 2006 at 08:11 PM in Constitutional thoughts | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef00d8345a33e369e2

Listed below are links to weblogs that reference The Oregon case:

» Words/356 from Wiki
[back to top] Prev Words Next 356 356 Topic with BLOG Google search result Inspect with the Amazon Try seeing with the picture/image Inspect with the other site 356 Topic with BLOG [back to top] 2006-01-18 Govt sells 8 pct of Maruti ... [Read More]

Tracked on Jan 17, 2006 11:26:35 PM

» Death Watch from The Debate Link
The U.S. Supreme Court has just struck down a federal effort to stop legal assisted suicide in Oregon. Oregonians have twice approved the law for effect in their state, but then-Attorney General John Ashcroft tried to circumvent the law by interpreti... [Read More]

Tracked on Jan 17, 2006 11:56:08 PM

Comments

Marty, I didn't think you were saying that, but Scalia seems
to, and Rick seems to agree!

Posted by: David Bernstein | Jan 19, 2006 12:29:28 AM

I'm glad we agree on this at least! (In my first amendment class this last year I found myself growing more and more amused [though also a bit annoyed] to find out that if the first amendment meant anything at all it meant a good dozen different things. I suspect the same thing applies for many other clauses. There's probably a funny law review article for someone there, finding out exactly what the essential meaning of the constitution is by tracing all the "If the X clause means anything, it means Y" statements.)

Posted by: Matt | Jan 18, 2006 8:43:44 PM

I agree with you, Matt, that -- by and large -- statements like "if X means anything, it means Y" (statements that the Court *loves* to substitute for analysis) are not much help. And, I agree that one of the many reasons such statements are irritating is that they are disrespectful to reasonable people who believe that, in fact, X means not-Y.

Posted by: Rick Garnett | Jan 18, 2006 8:22:36 PM

Rick,
I am happy to agree that it might well be the _best_ understanding of the phrase "legitimate medical use" that it rules out using drugs to assist in suicide, and that maybe even our views about the morality of this practice is relevent (or even determinative) of whether this is legitimate. But that's not what Scalia says- he says that this is the only possible interpritation. (I know that the "if X means anything, it means Y" formulation is a dime a dozen in Supreme Court decisions, and that these are often nonsense, but that doesn't mean we should accept this sort of nonsense.) Surely it's nonsens to say that if this phrase does not necessarily rule out prescribing drugs to help in suicide as a legtimate medical purpose than the phrase has no meaning at all or could mean anything, but that's what Scalia here says. Scalia often uses this sort of over-the-top (and obviously false) rhetoric. I suppose it's considered colorful. But, it's also dangerous and disrepsectful.

Posted by: Matt | Jan 18, 2006 4:13:24 PM

Thanks, Marty, for your response. My post was unclear, and I apologize. I intended to raise questions about Justice Scalia's statement that "the prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution[,]" and to raise (but not, to be clear, necessarily to endorse) the possibility that Section Five -- which we should, I suppose, include among Congress's "enumerated powers" -- authorizes Congress to prohibit states from excluding classes of persons from the full protection of the homicide laws (assuming those laws, generally speaking, do not permit persons to assist in causing another's death, even if the other consents).

As for Matt's point that Justice Scalia is a "fool" for thinking that "[i]f the term 'legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death," I'm not sure. On the one hand -- to agree with Matt -- it seems wrong for Justice Scalia to suggest that Oregon's determination that physician-assisted suicide is lawful in some cases is not relevant to question whether prescribing drugs for the purpose of causing death is "legitimate." On the other hand, I am not sure it is "fool[ish]" to regard the word "legitimate", in its ordinary usage, as ruling out, notwithstanding Oregon's Death with Dignity Act, conduct that many non-foolish people regard and have long regarded as immoral.

Posted by: Rick Garnett | Jan 18, 2006 11:17:46 AM

David: I didn't say that "the power to ban the interstate shipment of lottery tickets or women *controls* the power to ban the wholly in-state prescribing of drugs." Both are within the Commerce power -- the former because it involves interstate travel, the latter because it is a regulation of economic activity, "wholly" in-state or no -- but one doesn't follow directly from the other. I realize that you may disagree that Congress can regulate "wholly in-state" activity, and/or that Congress can act when a state is "perfectly able" to handle a problem "on its own," but Congress's power in such cases is long-established, and Scalia's point was simply that where there *is* such congressional power, the legislature's non-Commerce-related *objective* is of no constitutional moment, notwithstanding Marshall's famous "pretext" passage in M'Culloch. That, too, is hardly news: See Darby and Heart of Atlanta Motel.

Posted by: Marty Lederman | Jan 18, 2006 11:05:19 AM

It is a good decision, and a win for state's rights. The federal government has long used the constitution as a sword to infringe on individual rights by way of the commerce clause.

Mr. Bernstein - your argument that terminally ill patients are getting a special privilage is akin to arguing disabled people recieving social security disability are also getting a special privilege. Distinctions must be made in society.

Posted by: David Kleczek | Jan 18, 2006 10:37:08 AM

I just don't see how the power to ban the interstate shipment of lottery tickets or women controls the power to ban the wholly in-state prescribing of drugs. A state that wants to prevent "white slaves" or lottery tickets from coming in needs federal help. Oregon, however, is prefectly able to regulate "homicide" on its own. As for Rick's other point, you could turn it around: terminally ill patients are gettiing a special privilege, anyone else who wants to end his life is on his own.

Posted by: David Bernstein | Jan 18, 2006 10:28:44 AM

Rick: I'm a bit confused. Scalia writes that "using the federal commerce power to prevent assisted suicide is unquestionably *permissible*." You then ask whether "it so obvious that Congress *lacks* the power to prohibit assisted-suicide laws."

A couple of thoughts on the question. You know me: I think the Commerce power is virtually unbounded. And yet even I would be very hard-pressed to argue that Congress has the power to simply flat-out prohibit assisting suicide simplicitur, or to prohibit suicide itself, for that matter. And I don't read Scalia to be suggesting otherwise.

But Congress *does* have the power to regulate the provision of medical services -- a plainly economic activity -- and, whatever one thinks of the *possession ban* at issue in Raich, Congress has the power to regulate physicians' prescriptions of drugs. To be sure, Congress has not traditionally regulated the practice of medicine, and thus yesterday's decision holds that the Court won't assume Congress has taken such a momentous step unless it speaks clearly. But the majority plainly, and correctly, assumes that Congress *could* do so.

And that brings us to Scalia's point: *If* Congress is acting in a manner that is otherwise within its commerce power -- e.g., by regulating the interstate transport of persons or things (Hoke and the Lottery Case), or by regulating the commercial practice of medicine -- then it does not matter that the *object* of the regulation is one (e.g., morality, protection of those contemplating suicide) that has nothing to do with Commerce and that Congress arguably could not regulate directly.

I hope that's responsive to your question.

Posted by: marty lederman | Jan 18, 2006 8:56:53 AM

But, of course, is it really "the same context" this time around? Many, including I, think not.

Posted by: Joe | Jan 18, 2006 8:53:08 AM

By "water over the dam" I think all Thomas was saying is that the Court could have endorsed the same federalism principles last year in Raich, but now should have to live with its endorsement of the CSA in basically the same context as the present case. Of course he doesn't mean Raich is now set in stone. That goes against almost every Thomas dissent in a con law case.

Posted by: Employment lawyer | Jan 18, 2006 7:36:56 AM

what happened to states rights? strict construction? scalia's "fidelity to principle"? will they revoke his membership to the federalist (nihilist) society? and has originalism, since it is apparently no longer politically useful as a hermeneutic, been officially abandoned by the right-wing jurisprudes? or are we still pretending it means something? and just how much cognitive dissonance can scalia and thomas withstand before their heads explode?

Posted by: a-train | Jan 17, 2006 11:41:06 PM

Whatever else may be the merits of Scalia's view (I find it something less than powerful) the last part is the sort of obvious nonsense that makes him painful to read. Perhaps the best reading of what congress did here gives the federal government this power, and perhaps its the best reading of the idea of "legitimate medical purposes" that it excludes prescibing drugs for the use of suicide. But, there is no way that this is the only possible interpritation. (Since I think it's fairly obviously a wrong one I don't even think it's a very good one. But, there is no way that this is the only possible interpritation that is reasonable, as Scalia suggests.) If Scalia really thinks this he's a fool. If he doesn't believe it I'm not sure what he's doing but it's not preatty.

Posted by: Matt | Jan 17, 2006 9:54:13 PM

Post a comment