As a conservative originalist, I think the court shouldn't rule against Oregon. I don't agree with Oregon's law, but it doesn't violate anything actually written in the Constitution. Judicial activism is wrong no matter which side is doing it.

I'll also wait until a decision is made before condemning the ruling. The Chief Justice has shown in at least one case (the teenager arrested for eating french fries) that he can rule that a law isn't unconstitutional even though he disagrees with it. Too bad that others don't share that view.

The question in the assisted suicide case is a matter of reading the statute, not the Constitution. The Court is asked to decide if the Controlled Substances Act is meant to extend to doctors in a case like this. Almost certainly, it is. (Not that it's a good law; it isn't.)

In Raich, this sort of application of the CSA, overriding state law, was found constitutional under the commerce clause vis-a-vis medical marijuana. Now, Raich was wrongly decided. Some have speculated that the liberals, who seem to want to interpret the CSA as circumscribing executive power in this case, may be joined on the pro-Oregon side by Thomas, on commerce clause grounds. But Thomas's general rule of thumb is to only reconsider precedent when the petitioner or the respondent requests it, and there are good reasons for that. I don't think Oregon asked for justices to consider the Constitution at all (though I haven't read everything related to the case); it makes a big difference.

I wrote this on the topic yesterday.

"What he doesn't see, perhaps from the distance, is that many on the right despite saying they want strict constructionists on the court really just want different politics.

It stems, I think, from their own deep involvement with their political philosophy and either their inability to separate political philosophy from their judicial philosophy, or just a complete lack of a judicial philosophy all together.

Based on my estimation of President Bush's nominations I am fairly certain that he and I share a similar judicial philosophy. Judges should rule based on the law and not politics. If a ruling comes down that does not agree with my politics but is made in accordance with the law then my recourse is to seek to change the law. The question has been debated as to whether or not Miers will “vote right.” I believe it matters less how she votes and more how she thinks, and apparently we are going to have to wait for the hearings to get any real clues to that.

If you don't like the politics and the politicization of the court, the answer is not to change the politics but to remove the politics. Return judging to the law and leave the politics to the politicians."

Somebody help me out here. Our esteemed scholar balletshooz claims that "when it came to allowing medical marijuana to ease the pain of the sick or the right of the terminally ill to die with dignity, Rehnquist, like an activist, twisted court reasoning any which way he could to ignore the plain meaning of the 10th amendment and to legislate against those voter-passed laws."

But since Rehnquist dissented in Raich, I'm forced to infer until other evidence surfaces that Balletshooz knows as much about Rehnquist and medical marijuana as Howard Dean knows about Kelo.

(long babbling post here)

The Controlled Substances Act, if enacted pursuant to power conferred by Commerce Clause, is constitutional under the Court's precedents.

If the act was not intended to control drug prescriptions in connection with physician assisting suicide, Oregon will win. This interpretation of the CSA is one that favors federalism. But if Congress intended to cover this type of activity (ha!), then federal prescription licenses can be revoked. Ashcroft's decision to claim he has the power to do this is not in keeping with principles of federalism, even if legal. Just like the 21 years old drinking age is forced on states.

The 10th Amendment really is just an observation, though a very important one, about the powers of the federal government.

- - - -

Excerpts from from the 9th circ. majority that seem to summarize the case well:
http://caselaw.lp.findlaw.com/data2/circs/9th/0235587p.pdf

"Under the CSA, it is unlawful to prescribe or dispense controlled substances without a federal registration. 21 U.S.C. § 841(a)(1); see also id. §§ 823(f), 822(a)(2)."

. . .

In 1984, Congress amended the CSA so that
"[t]he Attorney General is now authorized to revoke a physician’s prescription privileges
upon his determination that the physician has “committed such acts as would render his registration . . . inconsistent with the public interest[.]” 21 U.S.C. § 824(a)(4)." Certain factors must be considered in determining the public interest.

. . .

Reno refused to say that Oregon's assisted suicide statute could be grounds for revoking a federal registration. Ashcroft reversed course in 2001:

"The Ashcroft Directive proclaims that physician assisted suicide serves no “legitimate medical purpose” under 21 C.F.R. § 1306.04 and that specific conduct authorized by Oregon’s Death With Dignity Act “may ‘render [a practitioner’s] registration . . . inconsistent with the public interest’ and therefore subject to possible suspension or revocation.” 66 Fed. Reg. at 56,608
(quoting 21 U.S.C. § 824(a)(4)). The Directive specifically targets health care practitioners in Oregon and instructs the DEA to enforce this determination “regardless of whether state law authorizes or permits such conduct by practitioners.”

. . . .

"All parties agree that the question before us is whether Congress authorized the Attorney General to determine that physician assisted suicide violates the CSA. We hold that the Attorney General lacked Congress’ requisite authorization. The Ashcroft Directive violates the “clear statement” rule, contradicts the plain language of the CSA, and contravenes the express intent of Congress."

. . .

"Unless Congress’ authorization is “unmistakably clear,” the Attorney General may not exercise control over an area of law traditionally reserved for state authority, such as regulation
of medical care." -- NOTE: this is a rule of interpretation that favors federalism.

- - -

"The Ashcroft Directive is invalid because Congress has provided no indication—much less an “unmistakably clear” indication—that it intended to authorize the Attorney General
to regulate the practice of physician assisted suicide. By attempting to regulate physician assisted suicide, the Ashcroft Directive invokes the outer limits of Congress’ power by encroaching on state authority to regulate medical practice. See Linder, 268 U.S. at 18; Conant, 309 F.3d at 639. Because Congress has not clearly authorized such an intrusion, the
Ashcroft Directive violates the clear statement rule" . . . We need not, and therefore do not, decide whether the Ashcroft Directive actually exceeds Commerce Clause boundaries,

- - - -

They say a lot more, but this is the gist of the argument. Seems pretty solid. The dissent is based on a blind deference to the AG argument that seems weak at first blush.

Hey!! No fair!!

At any rate, balletshooz is simply full of it. He doesn't have an "overarching" argument, it's merely a tu quoque -- "see, conservatives do it too!!" -- and then he compounds that logical fallacy when he fails to actually provide and substantiate an accurate example.

Scalia, incidentally, didn't sign Stevens opinion, he wrote a separate concurring opinion. My (tenuous) understanding of Scalia's argument is that 1. the CSA is basically valid; 2. certain law enforcement options are necessary, from an instrumental standpoint, to enforce the CSA; ergo 3. if the DEA wants to bust medpot growers and users, it's valid. A short quote: "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." In other words, he's not claiming that the commerce clause directly validates the DEA's actions in this case, but that in order for the DEA to be able to do their job, we have to let them do stuff like this. I don't agree, mind you, but his concurrence is textual. Sadly, O'Connor's dissent is primarily policy-oriented. Thomas' dissent is textual. Where Thomas and Scalia primarily differ is on the necessity of busting growers to effectively enforce interstate bans.

Oh, and Bill? Personally, I have found your arguments concerning conservative activism more persuasive.

You know, looking at balletshooz a little closer leads me to conclude that he's even more hacktacular than I had originally thought. From the WaPo article he links -- the ONLY cite he gives -- we find the following: "Roberts asked whether such state decisions would undermine the effectiveness and uniformity of the federal law." That's all. Nothing else on Roberts. Zip. Zilch. Nada. From that single, solitary question (not even a directly quoted one, at that), balletshooz concludes that "Roberts in his first case appears intent on ignoring the constitution, the will of the people, and the will of the legislature. Roberts, an unelected official, is poised to legislate from on high. He believes that the voters of Oregon don't matter, the legislature of Oregon doesn't matter, and the 10th amendment to the US constitution doesn't matter. What matters is that Roberts is against death with dignity and he will do anything to stop it. That is the definition of an activist judge." Balletshooz makes no logical argument nor presents evidence in support of his position. The entire "editorial" is a long ad hominem predicated on a single question. You should talk to Goldstein about the serious dangers inherent in leftist (or anyone else's) attempts to invalidate debate by making even the act of questioning out of bounds.

the ONLY cite he gives -- we find the following: "Roberts asked whether such state decisions would undermine the effectiveness and uniformity of the federal law." That's all. Nothing else on Roberts.

To be fair, it is also the Washington Post's analysis that Roberts is leaning towards supporting federal authority, in that article and another piece that I recall reading the other day.

I'm not trying to hijack your comments here, but there's a HUGE difference between "Roberts is leaning towards supporting federal authority" and "Roberts in his first case appears intent on ignoring the constitution, the will of the people, and the will of the legislature" blah blah blah.

I agree, there is a huge difference.

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