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.

Comments

[Greg]

This case was not about federalism at all. The Oregon doctors did not press their commerce clause portion of their case. See Thomas’s second footnote. The Oregon doctors accepted the position that the commerce clause authorized congress to regulate the practice of physician assisted suicide. This is why Thomas is in the dissent not the majority.

Instead this whole Oregon case revolved around a statutory inetrpretation issue of did the CSA drafted by congress give the AG to rule on the particular issue of physician assisted suicide. The controlling cases are Auer a 9-0 decision from 1997 and Chevron. Both say that once congress has the authority (commerce clause) then HOW they regulate through agencies and the AG is more open. In particular broad discression is given to the agencies and AGs in their interpretation.

The majority admits this, but distinguished Auer and Chevron. Scalia says that you can not distinguish Auer and the deference should be given to the AG here. I tend to agree but people can differ on this.

As for Thomas, beyond Scalia’s straight forward dissent, he also added that in Raich, when inteprepting the same statute the majority (sans O’Connor) gave a large scope of authoirty to the AG interpreting what legitimate medical practices are (ie. medical marijuana is not legitamte). Now seven months later the say the exact opposite.

Here are the relevant quotes –

Stevens in Raich –

First, the fact that marijuana is used ?for personal medical purposes on the advice of a physician? cannot itself serve as a distinguishing factor. 352 F.3d, at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. **Moreover, the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner.** Indeed, most of the substances classified in the CSA ?have a useful and legitimate medical purpose.? 21 U.S.C. ? 801(1). Thus, even if respondents are correct that marijuana does have accepted medical uses and thus should be redesignated as a lesser schedule drug,37 the CSA would still impose controls beyond what is required by California law. The CSA requires manufacturers, physicians, pharmacies, and other handlers of controlled substances to comply with statutory and regulatory provisions mandating registration with the DEA, compliance with specific production quotas, security controls to guard against diversion, recordkeeping and reporting obligations, and prescription requirements. See 21 U.S.C. ? 821?830; 21 CFR ?1301 et seq. (2004). Furthermore, the dispensing of new drugs, even when doctors approve their use, must await federal approval. United States v. Rutherford, 442 U.S. 544 (1979). Accordingly, the mere fact that marijuana?like virtually every other controlled substance regulated by the CSA?is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA.

Kennedy in Oregon –

“The statute and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally.”

Those are NOT consistent. But, like I said it doesn’t matter. Oregon is a peanuts case probably taken because the 9th circuit opinion accidenntally included some commerce clause limitations that SCOTUS had to clean up. The results of this decision are reversed as soon as congress says- Yes the CSA does give the authority to the AG to regulate physician assisted suicide.

[ChrisM]

Indeed, federalism has it’s share of fair-weather friends. The federalism cannon, as it exists on the Court today, reminds me of substantive due process: It’s whatever you want it to be… Scalia, for his part, absolutely loves to congratulate himself for his alleged judicial restraint and interpretive purity. The justice of Scalia’s imagination would actually be a welcome addition to the Court, but I think he and the actual Scalia would bicker incessantly, and he would probably never be confirmed by the Senate anyway.

[Will Allen]

I’ll take Thomas over Scalia any day of the week, which is a bit ironic, given how some have so vituperatively (and stupidly, I might add) attacked Thomas as Scalia’s puppet.

[Warren]

Scalia doesn’t like people smoking pot and he doesn’t like people killing themselves. Gee he voted to keep other people from doing what he doesn’t like in both cases. His verbose opinion in which he buries some federalist sympathies does not impress me.

Thomas gave a pro-federalist dissent in Raich and appears to have dissented here just so he could bitch-slap (in a tight 1,000 word opinion) his capricious peers. Thomas is the most principled federalist on the court but it seems he’s at his best in dissent.

If Roberts has any federalist sympathies we should have seen them here, and I fear Alito’s inclination might just be to crown the executive and be done with it.

[Karl]

Jacob – Scalia becomes more of a disappointment the more one reads of his decisions. In the snippet you quote, he’s basically saying that no, the United States does NOT have the power to regulate assisted suicide, nor does it have the power to regulate traffic in narcotics, under enumerated powers. But then he says what amounts to, but we’ve said that it does have those powers for long enough (jurisprudence) that it in fact does. Living Constitution indeed. It seems he’s saying we have a new way of modifying the Constitution simply by weight of time and paper trail. Unless you interpret his comments to mean that he thinks we *should* “repudiate long and well-tested principles of jurisprudence”; I certainly don’t get that impression from him or his desicions. Thomas seems to be the only one willing to raise the Jolly Roger and start slitting throats, which is probably just what we need (metaphorically of course).
-Karl

[Will Allen]

Yep, Warren, the only real hope that I had for the Bush Administration domestically, from the day Bush v. Gore was decided, was that it might inadverdantly nominate real federalists to the Court. Why can’t a Supreme Court justice ever grow in my direction?

[methodman]

Scalia could learn a thing or two from Mark Cuban.

[fyodor]

All this reinforces the notion that the Supremes are not some detached elite ruling only on how the applicable statutory and/or constitutional texts apply to the facts immediately before them but rather super-voters who whose nine votes count more than the rest of our millions in deciding the issues of the day. Methinks Lady Justice needs her blindfold tightened.

But at least it came out for the best in this particular case, however illogically or disengenuously arrived at.

[rafuzo]

Karl,

I *do* interpret his comments that way. (Though I don’t think he’s trying to impugn “long and well-tested jurisprudence”, but rather the recent and poorly-formed jurisprudence that lead to Raich). He starts by saying, “While the scope of the CSA and the Attorney General’s power thereunder are sweeping, and perhaps troubling…” and “I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure”, which says to me exactly what he REALLY thinks about the subject.

I’m guessing at least he, and maybe, MAYBE Scalia, dissented mainly to prove an academic point: if the Court is going to allow the kind of nonsense that Raich allows, well, there’s no reason this doesn’t fall under that hideous penumbra either. If you’re going to make bad decisions, at least make them consistently.

My theory is that at the end of the day the majority decision was what he desired, and he saw this as a chance to stick it in the eye of the Court Commerce Clausers via a more visibly read dissent than a concurring brief.

My theory, anyway.

[Karl]

rafuzo – The part you’re quoting is from the Thomas dissent; I was refering to the bit of the Scalia dissent (granted Thomas signed onto it, so it’s a bit nebulous) Jacob quoted. I do interpret Thomas’ dissent as a sort of thumb in the eye. I’m questioning whether the statement “(Scalia) sounds almost as radical as Thomas” was a reflection that Jacob really thought that Scalia believes that the lack of an enumerated power trumped the well-established jurisprudence. I don’t think so – it seems to me Scalia (from the snippet of the Oregon decision along with his past dicisions) thinks that if we say something long enough and build up a paper trail, it effectively changes the Constitution. That may be true in practice, but I like Thomas’ approach of saying “you don’t have the power, regardless of what you keep telling yourself.” In short – I’m not arguing about Thomas – the bit I was refering to was from the Scalia written decision.
-Karl

[Greg]

Look – the federalism issue in Raich is at least a plausible field for debate even if Thomas is the only dissenter.

But this Oregon case is about the Auer decision. It was 9-0 opinion from 1997. Once the federalism is settled in a particular instance, regardless of how you feel about it, Auer (among some other cases) controls HOW the agency can inetrpret its authority under the regulation statute. And ALL 9 JUSTICES AGREE that it should be really broad, unless it is OBVIOUS that the AG’s interpreation is outside the scope of authority granted by the law in question (here the CSA). This is the only issue at all in this case, because the defendants dropped the commerce clause objection (probably because of the outcome in Raich.

Any even remotely sensible reading of the CSA, its language and its use since 1970 clearly shows that this is the type of things that the CSA is desined to regulate. Even if you disagree with that, under Auer, the defendent would have to show that not only was it not the intention of congress to regulate this issue with this law, BUT that the AG’s rule is “not reasonable.”

On this statute in particualr, this discretion is nearly unlimited as stated by Stevens in the Raich majority. Now seven months later Kennedy for essenitally the same majority says that the AG’s has to jump through hoops to make such a ruling. If so majority justices, where was this tough standard in the Raich majority opinion??

[biologist]

“…maybe if Scalia and Kennedy hadn’t been such pussies in Raich, we’d be a little bit closer 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.”

Posted by Jacob Sullum at January 18, 2006 09:45 AM

Jacob Sullum, callin’ ’em like he sees ’em. Respect!