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Gonzales v. Oregon: Where are the conservatives?

By Robert S. Sargent, Jr.
web posted January 23, 2006

On Tuesday, January 17, last week, in Gonzales v. Oregon, the Supreme Court held that the federal statute, The Controlled Substances Act (CSA), which was enacted in 1970, does not prohibit Oregon from carrying out their The Oregon Death With Dignity Act. This act legalizes assisted suicide under certain circumstances. We Constitutional Conservatives don't see any enumeration in the Constitution that gives power to the Federal Government to police medical matters that are within the confines of one state, and, in fact, the 10th Amendment gives unenumerated powers to the states. This is a victory for state's rights and Constitutional Conservatives correct? So why am I depressed?

First, what is the CSA? It was enacted mainly to combat drug abuse. In 1971, the Attorney General enacted a regulation that prescriptions for controlled substances must be "…issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." And on November 9, 2001, Attorney General Ashecroft issued an Interpretive Rule which, Justice Kennedy (who wrote the majority opinion) wrote, "…determines that using controlled substances to assist suicide is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the CSA." Kennedy goes on, "The Interpretive Rule's validity under the CSA is the issue before us."

For 13 pages, Justice Kennedy argues that the Attorney General doesn't have the legal right to rule on what's a "legitimate medical practice," only the Secretary of Health and Human Services can do that. "…the statute (CSA) permits the Attorney General to add, remove, or reschedule substances. He may do so, however, only after making particular findings, and on scientific and medical matters he is required to accept the findings of the Secretary of Health and Human Services." So the Interpretive Rule is invalid.

Only at the end of the 13 pages of typical Kennedy mush, does he write one little paragraph dealing with federalism: "The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the states to the Federal Government to define general standard of medical practice in every locality. The text and structure of CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it."

So, even though federalism is given a very minor role in the opinion, we Constitutional Conservatives will take it any way we can get it. Right? But wait. What's the problem here? The problem is that Scalia, Thomas and Roberts dissented. Huh? The liberals have found state's rights, and the conservatives abandoned it.

Let's examine Scalia's dissent. For page after page, Scalia argues that the Secretary of Health and Human Services doesn't have to make certain findings; that assisted suicide is not a "legitimate medical practice;" that the control over prescription drugs has always been with the federal government, and so on and on. Whether Kennedy or Scalia is right on these determinations is frankly irrelevant. What is relevant is when Scalia writes: "…the Directive (CSA) does not push the outer limits of Congress's commerce power, or impinge on a core aspect of state sovereignty."

Astonishingly, Scalia goes on: "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 traditionally addressed by the so-called police power of the States." But he goes on: "From an early time in our national history, the Federal Government has used its enumerated powers, such as the 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. 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."

This is not hard. The public morality that Scalia refers to as being regulated by the Federal Government is, in his own words, interstate! Oregon's assisted suicide statute is not interstate!

And another thing, Justice Scalia, (I know you're reading this) in your book review of Steven Smith's Law's Quandary, you specifically say, "…giving words of the Constitution their normal meaning would ‘expel from the domain of legal issues…most of the constitutional disputes that capture our attention,' such as,… is there a right…to the assistance of a physician in ending one's life?" So, since you are supposedly an "originalist," and would expel assisted suicide from the legal domain, and presumably put it in the hands of Oregon's legislature, why are you arguing that the CSA preempts The Oregon Death With Dignity Act?

Lately, we have seen Justice Scalia abandon state's rights in Granholm v. Heald, the case that overturned the 21st Amendment (that Amendment gave the states the right to regulate "intoxicating liquors," even if they violate the Commerce Clause), and in Gonzales v. Raich, which overturned California's law that allowed Californians to use marijuana for medicinal purposes. What's depressing is that Thomas and Roberts have joined him in Gonzales v. Oregon.

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.

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