The Illegal Law Says It's Legal

In yesteday's Supreme Court decision regarding physician-assisted suicide in Oregon, Justices Clarence Thomas and Antonin Scalia both disagreed with the majority's interpretation of the Controlled Substances Act. They concluded that the law does authorize the attorney general to revoke the prescription privileges of (and prosecute) doctors who prescribe lethal doses of drugs for patients who want to kill themselves, even when such prescriptions are explicitly permitted by state law. But both also indicated that the Constitution does not authorize Congress to legislate in this area (a question the Court was not asked to address).

Thomas found the majority opinion "puzzling" and "perplexing" because "a mere seven months ago," in Gonzales v. Raich, five of the six justices who yesterday cited federalism concerns in narrowly construing the CSA tossed federalism out the window by ruling that the Commerce Clause authorizes Congress to criminalize purely intrastate possession of marijuana for medical use, even in a state that recognizes the drug as a medicine. In his dissent from yesterday's decision he wrote:

While the scope of the CSA and the Attorney General's power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Court's Commerce Clause and separation-of-powers jurisprudence….I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure….But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power.

This criticism is understandable coming from Thomas, one of three dissenters in Raich and the only justice who has explicitly called for revisiting the "substantial effects" doctrine, which has turned the Commerce Clause into a license to legislate on virtually any topic that strikes a congressman's fancy. The puzzling and perplexing thing is that Scalia, who (along with Anthony Kennedy) deserted the cause of federalism in Raich, now sounds almost as radical as Thomas:

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 (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers….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. [Emphasis added.]

True enough, but maybe if Scalia and Kennedy hadn't been such pussies in Raich, we'd be a little bit closer to such a repudiation--and to the principle that Congress may exercise only those powers it is granted by the Constitution. To my mind (and to at least half of Scalia's mind), that would be a positive development.