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.