Baseball Crank
Covering the Front and Back Pages of the Newspaper
January 17, 2006
LAW: Assisted Suicide Victorious

If you missed it, the Supreme Court - just months after holding that the Controlled Substances Act reaches far enough to cover intrastate marijuana growth for medical purposes - has held that the same statute doesn't reach far enough to authorize regulations prohibiting the use of controlled substances by doctors in physician-assisted suicide. The Court's opinion, by Justice Kennedy, is here; Justice Scalia's comprehensive dissent, joined by Chief Justice Roberts and Justice Thomas, is here, and Justice Thomas' additional dissent (writing for himself and complaining specifically about the inconsistency with Raich, the medical marijuana decision) is here.

The case is more limited than the usual hot-button social-issue case, since the Court was only asked to decide how far Congress intended the statute to go and not what the Constitution says on the matter. I haven't waded through all the conflicting arguments about the statutory issues in sufficient detail to have a firm grip on who has the better argument here; I'm inclined to side with Scalia, but that's not really an educated opinion and much turns on the abstruse issues of administrative law standards of deference. Justice Thomas, though, does have a rather compelling point that if the statute's breadth is as sweeping as the Court claimed in Raich, it's hard to see why it wouldn't also cover the proscriptions here. In any event, charges of hypocrisy against the dissenters seem to misunderstand the narrowness of the issue the Court was asked to resolve.

My gut-level policy thoughts on the issue:

1. Physician-assisted suicide is a Bad Thing and shouldn't be encouraged. I'm not an absolutist on end-of-life issues, for a variety of reasons - while there are common themes with the abortion issue, there are also a welter of complications on questions of heroic medical care, individual autonomy, and the like - and I think the government can best manage those complications by giving broad range to different people's different moral choices without a lot of interference. Nonetheless, inserting doctors - with their conflicting financial incentives and natural God complexes - into the business of ending the lives of people who aren't imminently about to die is just a bad idea.

2. That being said, the real issue with assisted suicide isn't the drugs, it's the doctors, and licensing doctors and resolving contentious issues about how far the state can involve itself in moral issues are classic questions for the states, not the federal government.

3. Which brings us back to the question at issue in Raich: if you let states have different rules, will it make federal regulation impossible? I wasn't persuaded of that argument in Raich and I'm certainly not persuaded of it here. Constitutional and statutory questions aside, in both cases the issue should be left to the states. And legislative or executive supporters of federal interference in both cases are certainly being fair-weather federalists.

UPDATE: I don't at all buy the claim that there's something hypoccritical about Scalia concluding that it was constitutional for Congress to use the Commerce power here:

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. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality - for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U.S. 308, 321—323 (1913); Lottery Case, 188 U.S. 321, 356 (1903). 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. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.

David Schraub argues that this is out of character for Scalia:

You got that? Even though it is found nowhere in the constitution, and justified by nothing more than a vague reference to "public morality", and involves an area traditionally left to the states, it's still a perfectly permissible.

(Emphasis in original). This misunderstands the role of the Court and the role of enumerated powers. First, as Scalia noted, this is a long-settled doctrine, and nobody in the case was calling to overturn it. Even Justices who think that we may properly revisit long-settled Constitutional doctrines are usually hesitant to do so without any party to the case asking them to. All Scalia was doing here was assuming that Congress legitimately intended to legislate for this purpose, given 100+ years of history saying it could.

More to the point, there is a big difference between saying that Congress (or another branch of government) can go beyond its enumerated powers, and saying that Congress can act within those powers for unenumerated purposes. Here, we have the latter - there is no question that the drugs involved in this case traveled in interstate commerce, and even Scalia is unlikely to sign on, at this late date, to a sufficiently cramped view of the commerce power to find that Congress can't regulate the use of goods shipped in interstate commerce; that battle was lost 70+ years ago. What Schraub is implying here is that Scalia, for consistency's sake, should have concluded that even an act within Congress' explicit powers is impermissible if the intended purpose of that act invades traditional state authority. But that is a much more radical states' rights doctrine than anybody on the current Court embraces, and it doesn't square with the plain language of the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment speaks of delegated powers, not the purposes and intentions to which those powers are put. Indeed, it would be a most unconservative approach (and one specifically dissented from by Scalia in Romer v. Evans) to give constitutional dimension to the intended purposes of an act rather than look at what powers are enumerated and presume that acts taken under those powers are legitimate (as was done in South Dakota v. Dole, an opinion Scalia joined). Schraub's analogy (taken from here) to United States v. Morrison, the Violence Against Women Act case, is misplaced; the Court in that case found an absence of proper basis for the commerce power in the first instance - i.e., an insufficient nexus between interstate commerce and domestic violence - rather than creating an affirmative rule repealing the commerce power, even when otherwise applicable, based upon the intended use of that power.

The lesson, as usual, is that people who charge conservatives with hypocrisy as often as not end up demonstrating that they don't understand conservative principles.

Posted by Baseball Crank at 10:01 PM | Law 2006-08 | Comments (14) | TrackBack (5)

I don't think that I misunderstand the issue -

The case is more limited than the usual hot-button social-issue case, since the Court was only asked to decide how far Congress intended the statute to go and not what the Constitution says on the matter.

I don't find that interpreting whether or not the FCSA has the specific breadth and authority to regulate medicine - even with a focus on precedent and the intent of the statute itself - can be decided outside of an evaluation that involves Constitutional authority. If that were the case, Roe would be snug as a bug in a rug, given its super-duper-precedent. And if you think that's the case (Roe is safe), I have a bridge I can sell you. ;)

Posted by: Bill from INDC at January 17, 2006 11:33 PM

The Court usually won't raise the Constitutional issue if the parties don't.

Posted by: The Crank at January 17, 2006 11:42 PM

Instinctively, I agree with Crank...although I still have to finish plowing through Justice Kennedy's opinion.

As usual, Justice Thomas' dissent is concise & well-written....once again highlighting the value of a good liberal arts education.

Posted by: Maryland Conservatarian at January 18, 2006 1:15 AM


You know from our debates on abortion I'm not inclined to agree with you on points 1 or 2. But I'm riding shotgun with you on point 3 right down Pennsylvania Avenue. That's the whole crux of the issue and why the inconsistency with Raich is such a head-scratcher.

I know the moral issues are important, by the way, but to keep seeing "small government" justices like Scalia, Thomas (and now Roberts & presumably Alito) siding with a meddling, overbearing Federal government is hypocritical.

As a libertarian this concerns me. As a rock-ribbed conservative Republican, this should give you pause . . . and then some.

Posted by: Mike at January 18, 2006 5:52 AM


Oops. My bad. I'm with you on point 2 as well. It's only point 1 where we differ.

And, Maryland Conservaterian, I agree. We discussed that topic a bit here back in October during Harriet-gate. I'm not necessarily a Thomas man, but I love reading his opinions: spare almost to the point of austerity, coming straight out of the text and solid logic. And little more. Plus a bone dry sense of humor oh-so occasionally.

Posted by: Mike at January 18, 2006 5:55 AM


In response to your update, I can't speak for Schraub, but my problem is not in a misunderstanding of "Conservatism," but in "Conservatism's" specious embrace of "states' rights" as part of its so-called platform.

Scalia embraces whatever rubric he chooses so that he can reach the *normative* conclusion he desires.

Stange that "conservatives" bitch-and-moan constantly about the improper extension of the commerce clause to "legislate" morality, as in Heart of Atlanta, the New Deal Dairy Cases, etc. They also scream about abortion being a state-by-state issue. Yet, when -- gasp! -- drugs or volitional suicide are implicated, in roar the Feds. That's called legislating morality from the bench.

It's hypocracy, and you're engaging in the same if you trumpet decisions such as this.

Posted by: Mike at January 18, 2006 11:00 AM

All but the most rabid conservatives are beyond Heart of Atlanta and the dairy cases. I hope so anyway. Scalia's assessment here is judicious. He doesn't rail against the commerce clause. He acknowledges it, and shows how it can be responsibly applied here. That his demonstration serves to highlight inconsistencies in the majority's approach to the commerce clause seems soft ground on which to base accusations of legislating morality.

Posted by: seamus at January 18, 2006 11:13 AM


Thanks for the reply.

You'll get no arguments from me regarding any critique of the fascimile of a jurisprudential "approach" used by O'Connor, Souter or Kennedy. In any case. After the debacle in the Connecticut "Takings" case this summer, I'm in a "pox on both their houses" mood.

My accusation of "inconsistency," leveled at Nino, is based more on his global/strategic actions. When he's involved in a Lopez-type scenario, he'll rail against Federal interference all day long. The snipes and sarcasm will seep from the page. Yet when traditional "Christian Values" are implicated in the case -- abortion, assisted suicide, prayer, drug use -- then he allows the Federal Government to rush in astride a white charger.

But I hear what you're saying. Incidently, I won't agree that all but the most arch-conservatives are cool with the dairy cases, nor have they moved beyond them. And, as for Heart of Atlanta, it's not really a decision that's safe to criticize publicly, now is it?

Posted by: Mike at January 18, 2006 11:24 AM


Scalia does seem more restrained in his criticism of commerce clause jurisprudence in certain areas than in others. And at this late date, its a fool who doesn't recognize the extent to which Scalia's ideology informs his work on the Court. But he's still generally good at what he's reputed to be great at- close textual analysis w/ an appropriate respect for precedent and history. Seems to me he's doing that here.

re Heart of Atlanta and the dairy cases...who knows what goes on behind the Federal Society's locked doors? Marshalls hung in effigy? Kennedys (incl and esp Anthony) condemned?

Posted by: seamus at January 18, 2006 12:01 PM

I don't want to double-trackback, but I'm just letting ya know I posted a brief response to your incisive critique RE: Scalia is hypocritical.

Posted by: David Schraub at January 18, 2006 7:08 PM

Seamus - you know, you can always just go check out the Federalist Society out. You're a DC guy and most events are free or involve just a nominal charge....just don't expect to learn the Secret Handshake the first time out.

Posted by: Maryland Conservatarian at January 19, 2006 6:29 PM

I've spent a bit of time amongst their likes. Was even asked to be chapter president. My reply was Marxian (Groucho, not Karl): "I'll join no club that would have the likes of me as a member".

Posted by: seamus at January 19, 2006 7:00 PM


Sounds good.

You and I should found a club and each can refuse to join.

Posted by: Mike at January 20, 2006 6:11 AM

this is one of the dumbest things i have ever seen.

Posted by: rusty at January 26, 2006 10:47 AM
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