Oregon Suicide OK/California Med Marijuana Illegal—Go Figure

Ronald Bailey | January 17, 2006

I am not a Supreme Court Justice (though if any more positions open up, I'd be happy to be considered), but on its face, it seems to me that the Court has contradicted itself with its decision in Gonzales v. Oregon. In its medical marijuana ruling in Gonzales v. Raich, the court declared that the Commerce Clause of the Constitution gave the Feds the authority to prosecute people who prescribe, supply, or use marijuana to ease the nausea associated with cancer and AIDS treatments.

In an article back in October, I cited the argument of University of Redlands government professor Arthur Svenson, "If homegrown medical marijuana is in interstate commerce, then surely so too are the barbiturates, which are clearly commercial and move across state lines, patients use to end their lives."

Yet, according to the Associated Press:

Justices, on a 6-3 vote, said the 1997 Oregon law used to end the lives of more than 200 seriously ill people trumped federal authority to regulate doctors. New Chief Justice John Roberts backed the Bush administration, dissenting with the majority for the first time.

That means the administration improperly tried to use a federal drug law to prosecute Oregon doctors who prescribe overdoses.

Allowing doctors to write scripts for medicines so that people can kill themselves is just fine, but prescribing medicines so that people can live more comfortably with grave illnesses is criminal. Subtle indeed are the ways of our nine justices.

Comments

|1.17.06 @ 1:36PM|#

Well, I guess Scalia and O'Connor were consistent. 2 for 9!

Dave W.|1.17.06 @ 1:55PM|#

The justices should not be deciding based on outcomes. the question in Raich was whether a US law trumps a state law (it did). the question in the Oregon suicide case is whether a US administrative agency trumps state law (it doesn't).

This is not an area where we should be looking at commonsense results. It is true that in both Raich and the Oregon suicide law the state law makes a lot more sense than the federal policy it conflicted with. However, the jurisprudential thinking is:

how the states and federal government allocate and/or share power is not decided by the court based on which party the court thinks has a more sensible policy.

In other words, the allocation of power questions should come out the same way whether regardless of who is making wiser policy in any given case. I am a states rights guy. Always have been. I would have wanted Oregon to win even if they were trying to restrict access to assisted suicide in the face of an adverse DoJ. Would you?

|1.17.06 @ 1:57PM|#

The question "Can Congress regulated the dispensation of drugs by doctors to patients?" is not the same question as "Does the CSA allow the feds to overrule the states on what is, and what is not, a legitimate medical purpose?"

Xmas|1.17.06 @ 2:03PM|#

Thomas was consistent. Read his dissent, he calls the rest of the court to task for saying one thing in Gonzales v. Raich and then reversing itself completely in this decision.

(click my name for the dissent)

|1.17.06 @ 2:06PM|#

I'm not sure they're inconsistent in the narrow sense of what the specific legal question at issue. The California case is about whether the interstate commerce clause of the Consitution permits the federal government to regulate home-grown marijuana that is never sold. Answer, according to this court: it does. The Oregon case doesn't address that broad question. It looks at a specific federal statute and asks whether that statute gives the AG the right to make the determination that he did. Answer--it doesn't. What if Congress passed a law tomorrow that purported to give the AG the authority to make these determinations? Probable answer: they could, under Gonzales v. Raich.

|1.17.06 @ 2:10PM|#

So, is Thomas just basing his dissent on Raich being precedent? Since he thought that was wrongly decided, it's not clear to me why he's changing his mind here.

|1.17.06 @ 2:12PM|#

So, is Thomas just basing his dissent on Raich being precedent? Since he thought that was wrongly decided, it's not clear to me why he's changing his mind here.

Warren|1.17.06 @ 2:15PM|#

Both cases turned on the same points of law, as Thomas' dissent makes clear. His opening paragraph is judicial smack-down.

|1.17.06 @ 2:31PM|#

I doubt Thomas is changing his mind. He's just registering his dissent from the majority's reasoning.

Xmas|1.17.06 @ 2:48PM|#

Yes, it looks like Thomas is using Raich as the precedent for his dissent. To quote the honorable justice, emphasis at the end is in the original version:

Justice Thomas, dissenting.

When Angel Raich and Diane Monson challenged the application of the Controlled Substances Act (CSA)...to their purely intrastate possession of marijuana for medical use as authorized under California law, a majority of this Court (a mere seven months ago) determined that the CSA effectively invalidated California's law because "the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner." Gonzales v. Raich, 545 U. S.

|1.17.06 @ 2:57PM|#

I asked this on the other thread...

Why could't Thomas side with the majority in a concurring opinion? Couldn't he have made his statement regarding consistency in such a concurring opinion?

Amy Phillips|1.17.06 @ 3:00PM|#

Preventing patients from growing and distributing marijuana does fall under the federal power to regulate interstate commerce.

Preventing doctors from prescribing legal drugs in doses high enough to cause death to terminally ill patients does not fall under the federal power to license doctors to prescribe drugs.

I don't agree with the first opinion, and I think the second doesn't go far enough (where in the constitution is the federal government authorized to decide who can prescribe drugs?), but there's no direct contradiction between them.

|1.17.06 @ 3:01PM|#

I don't quite understand Thomas. Is he really so idealistic and principled to dissent in this case as a smart ass because he thinks it is inconsitent with Raich (a point that is quite debateable and not as clear cut as tries to make it)?

If I really believe in state authority then I take a victory when I can get it. This court is 9 politicians, pure and simple. And Thomas can't accept a victory that obviously limits federal power but instead resorts to a whiny baby attitude.

Most disappointing is it looks like Roberts is pro-Fed justice close to Scalia, especially when it suits his religious views.

|1.17.06 @ 3:21PM|#

The question I have is whether Thomas would have concurred separately (thus preserving the decision that I think he agrees with) had two of the concurring justices dissented. I believe that the answer would be yes - he would have taken the states rights victory and run with it.

His behavior strikes me as a little childish - not what we deserve from a supreme court justice. The lack of detail and taunting language in his dissent seem to indicate a lack of seriousness on his part in this case.

MP|1.17.06 @ 3:27PM|#

Yes, it looks like Thomas is using Raich as the precedent for his dissent. To quote the honorable justice, emphasis at the end is in the original version:

As I read it, Thomas is saying that he is only dissenting because the other fucktards on the court can't create an intelligent argument that reconciles what he considers their idiotic Raich decision with Oregon.

One has to wonder, do you think Thomas has gotten beyond not respecting, and simply now just hates, most of his collegues? Because the between the lines venom in this dissent is astounding (and quite enjoyable to read).

|1.17.06 @ 3:36PM|#

I think some people need to go back and read the Thomas dissent again, especially the footnotes. The doctors removed the states rights issue from the argument themselves, focussing on the stat. language instead. Thomas mentions this in the footnotes. They did so because of Raich. So, rather than argue constitutional law, they argued stat. intepretation and won.

Also, Thomas did not just write a short 4 page dissent, he also signed the Scalia dissent, which is not clear at all (as ususal), but basically says that SCOTUS has already decided this issue and if only stat interpretation is at issue, then broad deference is shown to the legislature and agency. He sites a number of precedent opinions written by liberal judges. Thomas wrote an extra dissent to clear up the muddied con law issues that the majority injected unnecessarily.

There is no con law issue at play here so there is nothing inconsistent with the dissenters. The majority talks about con law, but since the doctors didn't argue it, it amounts to alot of verbiage.

Xmas|1.17.06 @ 3:42PM|#

Thomas can be as snippy as he wants to be. He's already in agreement with the original dissent, but he wanted to add one more comment on the dissonance between the Raich decision and this new decision.

Now another case is bound to come along that will challenge the Oregon decision using the logic in Raich or vice versa and the judges will be forced to reconcile their two decision, and thereby invalidate one decision or the other.

Cases like this are bound to happen over the course of time, but Thomas is particularly peeved because the two incongruous decisions have come only seven months apart.

|1.17.06 @ 4:22PM|#

I don't think the Oregon case is particularly telling. The Court seems to be saying that while the Feds have the authority to overrule the Oregon policy, they have not yet done so. Administrative policy is not a substitute for Legislative action.

Should the Feds simply pass a law banning assisted suicide, SCOTUS will be happy to find a commerce clause/equal protection justification.

With Medical Marijuana, Ashcroft did a better job of convincing that not only COULD the Feds overrule CA policy, but that they INTENDED to.

|1.17.06 @ 4:28PM|#

So what does this ruling do to those painkiller-prescribing doctors we've read about that have been busted by the Feds? Are they now able to get new trials after this ruling?

|1.17.06 @ 7:54PM|#

Thomas is taking issue with the majority's interpretation of the CSA. The majority ruled in Oregan that the CSA only pertains to regulation to prevent drug abuse. Under this interpretation the CSA would not pertain to using Marijuana for medicinal purposes.

|1.17.06 @ 10:01PM|#

The First Amendment says we own our minds. The Second Amendment SHOULD HAVE SAID we own our bodies.
Had we had that Second Amendment, then SCOTUS would almost surely have been consistent and legalized drugs while legalizing suicide.

In the meantime, Dave W., explained above what a tangled web SCOTUS weaves.

amazingdrx|1.18.06 @ 7:22AM|#

None of the others laugh at his pubic hair on the coke can prank anymore.

His porn collection is still on videotape, the court refuses to pay for the upgrade to DVD. Interns just stare at him quizically when he offers to share his "tapes".

Plus the girls on the court object to his "gettin' busy" under his robe. No wonder he is miffed at his fellow jurists?

amazingdrx|1.18.06 @ 7:26AM|#

Alito looks like he will know how to respect a brother, so maybe Clarence will enjoy some kneeling time soon, and his mood will improve.