Pubdate: Wed, 18 Jan 2006
Source: Wall Street Journal (US)
Section: Pg A10
Copyright: 2006 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Bookmark: http://www.mapinc.org/ashcroft.htm (Ashcroft, John)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

Review & Outlook

FEDERALISM, A LA CARTE

  Supreme Court watchers can be forgiven if they thought they were in 
a Twilight Zone episode yesterday as they read the 6-3 opinion 
upholding Oregon's assisted-suicide law against attempted federal 
encroachment. The High Court's liberal wing, joined by Sandra Day 
O'Connor and Anthony Kennedy, has suddenly discovered the 
Constitutional virtues of federalism. Meanwhile, Justices Antonin 
Scalia and Clarence Thomas, along with Chief Justice John Roberts, 
argue in favor of the broad grant of federal power that the Attorney 
General was seeking in Gonzales v. Oregon. Count us with the 
federalists in this one, even if they are of the born-again variety. 
The case concerned the Bush Administration's attempt to use the 1970 
Controlled Substances Act to invalidate an Oregon statute passed in 
the 1990s that has allowed about 200 state residents to kill 
themselves with a doctor-assisted barbiturate cocktail.

The state's voters have twice endorsed the statute in referendums. 
But former Attorney General John Ashcroft tried to block the statute 
on grounds that the drugs the state allowed to be used for the 
suicide had been abused under federal law.

Writing for the majority, Justice Kennedy unloads a paean to states' 
rights worthy of the folks at the Cato Institute. The federal statute 
"manifests no intent to regulate the practice of medicine generally," 
he writes, and such "silence is understandable given the structure 
and limitations of federalism, which allow the States 'great latitude 
under their police powers to legislate to the protection of the 
lives, limbs, health, comfort, and quiet of all persons.'"

That sounds good to us, since a policy on assisted suicide is 
profoundly about health and local police powers.

We don't favor assisted suicide as a policy, especially as evidence 
has grown about the way it has been abused to become euthanasia in 
Europe. But in the American system, there's no good reason that 
Washington should be able to trump states' rights in the matter. The 
federal government does have the power to regulate drug trafficking, 
but the barbiturates in question were legally sold for the specific 
and highly regulated medical purpose of assisted suicide within 
Oregon. The Court's majority holds that the federal law in question 
did not give the Attorney General the authority to determine what 
constitutes "legitimate medical practice" for the entire country, but 
was something for the states to decide. In his characteristically 
caustic dissent, Justice Scalia zeroes in on the word "legitimate," 
and says it is a "naked value judgment" for the Court to decide that 
somehow the AG lacks such authority because the case involves a 
practice (suicide) the liberals presumably endorse.

And he has a point, insofar as Justice Kennedy's opinion jumps 
through logical hoops to square this decision with so many of its 
previous cases upholding federal power against the states.

Mr. Kennedy isn't known as the great improviser for nothing. In his 
own brief dissent, Justice Thomas cuts to the heart of the hypocrisy, 
pointing out that a mere seven months ago five of the six Justices in 
the majority in Oregon found broad federal authority under the same 
Controlled Substances Act to forbid the growth of medical marijuana, 
overruling a California law permitting the practice in Gonzales v. 
Raich. Justice Thomas had argued for a more-limited federal authority 
in Raich, but in Oregon he seems to have cast what amounts to a 
protest vote for the minority. "I agree with limiting the 
applications of the CSA in a manner consistent with the principles of 
federalism and our constitutional structure," Justice Thomas writes. 
"But that is now water over the dam." In other words, he's not about 
to join the Court's liberals in ignoring their own precedents simply 
to get to their favored policy conclusion. We sympathize with Justice 
Thomas's suggestion that this is another case of results-oriented 
jurisprudence in federalist drag. But then again, even liberals come 
to the right conclusion once in a while.

And if this case has led them to have greater respect for state 
prerogatives on profound cultural issues that ought to be settled by 
voters, rather than judges, so much the better for our democracy.

The Bush Administration was also guilty in this case of abandoning 
for political purposes what ought to be its own federalism 
principles. Mr. Ashcroft had reversed a policy of the Clinton 
Administration in order to invalidate the Oregon law at the behest of 
social conservatives who had lost the political battle over assisted 
suicide in that state.

Results-oriented jurisprudence isn't any more admirable from the 
right than it is from the left.
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MAP posted-by: Beth Wehrman