Yesterday, the Supreme Court upheld Oregon's assisted suicide law. Several months ago, that same Supreme Court also upheld the Federal Controlled Substances Act in the context of a state challenge to that law to permit the use of medical marijuana under a doctor's supervision. Why are these cases related? To the popular media, it's because both involve the use of drugs being prescribed in non-traditional ways, and whether people can use these drugs in these non-traditional ways. But what's really going on is much more interesting than that, at least to Con Law geeks like me. I like the ruling in the assisted-suicide case and I dislike the ruling in the medical marijuana case. But look past the results, at the reasoning.
Both cases involved issues of federalism and the extent of Congress' power under the Commerce Clause. In the medical marijuana case, the question was whether Congress has the power under to regulate (specifically, to prohibit) the cultivation, exchange, and consumption of marijuana, even if that substance never crosses state lines. The Supreme Court held that Congress has this power. But in the assisted suicide case, the issue was whether the Attorney General could intervene in and control the distribution of potentially lethal narcotics in the face of an Oregon state law authorizing a doctor, after some fairly stringent safeguards had been observed, to give those drugs to a patient. The Supreme Court held that the Attorney General did not have that power because Congress did not intend to regulate this kind of a medical transaction when it enacted the Controlled Substances Act.
Justice Thomas, in his dissent in the assisted-suicide case, pointed to a seeming contradiction between the two holdings. I think he's right to do so. Thomas voted in the minority in the marijuana case, on the basis primarily that locally-grown and locally-consumed marijuana does not affect interstate commerce. Having lost that vote, he treated the case as binding precedent and voted in favor of the Attorney General in the assisted suicide case. In other words, Thomas' first interpretation of the Constitution was that the federal government lacks the power to regulate a purely local medical transaction. But, finding himself in the minority in that case, he complied with precedent and then voted that yes, the federal government does have that power.
I discuss Justice Thomas first, because his dissenting opinions in both cases make it very clear that the Court has found no set standard, no bright line, not even any approximate principles, to guide the apportionment of power between the federal government and the several States.
Breaking down the votes, we see the patterns emerge. In the medical marijuana case, the majority (upholding the extension of Federal power) consisted of: Stevens, Kennedy, Souter, Ginsburg, and Breyer, with Scalia concurring in the judgment. O’Connor, Rehnquist, and Thomas dissented from the critical portions of the opinion (that is, they would have limited Federal power). In the assisted-suicide case, the majority (voting to limit Federal power) was Stevens, O'Connor, Kennedy, Souter, Ginsburg and Breyer, and the dissenters (voting to extend Federal power) were Roberts, Scalia, and Thomas.
So, the only justice who would have voted to extend Federal power in both cases was Scalia. A five-vote bloc of Stevens, Kennedy, Souter, Ginsburg, and Breyer carried the day in both cases. How very interesting. Scalia voted twice to give power to the Federal government. The "liberal" bloc of Stevens, Souter, Ginsburg, and Breyer took the "swing vote" of Kennedy and carried the day twice. I know there are some out there who think Kennedy has gone over to the liberal side and the result is a liberal majority on the Court. But the real picture is much more complex.
For Kennedy, the assisted-suicide case is one of Congressional intent. He states says that this was not Congress' intent, one way or the other, when it enacted the Controlled Substances Act. He does not seriously question that Congress could pass such a law if it chose, but he says that the Controlled Substances Act is not such a law, and the Attorney General's interpretation of the law to that effect is unreasonable. So Kennedy (and presumably, the rest of the majority) reconciles the cases by saying that "Congress could regulate suicide drugs, but it did regulate marijuana."
But I think it's pretty facile of Kennedy to decide these cases on the issue of Congressional intent. Congressional intent is not the issue. The extent of federal power is. The Attorney General's intepretation of the CSA was not unreasonable. It was aggressive, to be sure, and politically-motivated. I disagree with the political ends to which that interpretation was put -- I am in favor of medically-assisted suicide and I see the fingers of the pro-life movement all over the efforts to ban assisted suicide, so as a pro-choice thinker, I am repelled by the objective. But, the fact of the matter is, the Oregon law allowed doctors to prescribe regulated narcotics. And if Congress has the power to regulate these substances at all, then it also has the power to prohibit them, either in whole or in part, and under such circumstances as it sees fit to delimit within any rational relationship to any legitimate governmental objective. Indeed, it is much more likely that the drugs involved in the assisted suicides in Oregon were obtained through interstate commerce than the locally-grown marijuana in the other case, increasing Congress' apparent ability to regulate and control the use of those drugs.
So what do these cases, viewed together, tell us about Federalism? Well, the case from Oregon suggests that Lopez v. United States (Federal law criminalizing possession of handgun within specified distance of school is beyond scope of Congress' power to regulate interstate commerce) is not quite a dead letter and that there are indeed limits to the Federal commerce power. But we also have no clear indication of what those limits are, and Wickard v. Filburn (Congress may regulate a farmer's ability to grow wheat for his own personal consumption) is also very much alive. But by hiding behind the gloss of interpreting Congress' intent, and not giving us a clear picture of the contours of the Commerce power, the Court's majority has denied us any idea of what those limits really are.
So the cases are the result of reasoning from first principles, the classic Scholastic Error which stifled creativity, innovation, and enlightenment in most of the educated classes of medieval Europe. Relying upon the desirability of the result is not the way for a court to reach its result. That sort of thing is appropriate for politicians, and even lawyers functioning as advocates, but not for judges. Either the Commerce Clause has limits or it does not; either Congress has plenary authority to legislate as it sees fit, or it does not. The Supreme Court claims that in the abstract, there are limits, but in practice, we have seen exactly one case, Lopez, in which Congress has been found to exceed its limits. The legacy of Wickard and Heart of Atlanta Motel are that those limits have become effectively impossible to define.
A legal realist or a cynic might say that the limits are outcome-determinative -- that is, the Supreme Court doesn't like marijuana, but it does like assisted suicide; in the 1930's, it didn't like people not going along with New Deal economic regulations but in the 1980's, it did like people owning guns. But that is at once too simplistic and too complex. It seems to me -- even more cynically -- that the Court has voted the way it did at least in part because its members have no concrete idea of where the Commerce power ends. Maybe each individual Justice does, but there is no agreement between them, no consensus, so we are left with a case-by-case, pick-and-choose system. Since FDR tried to pack the court in the 1930's, the Supreme Court has been very sensitive to changes in the political wind and has taken care to keep its rulings within the range of what it perceives to be popularly-acceptable. Controversial sometimes, yes, but never so controversial to the point that a clear majority would reject the Court's rulings. This escalated dramatically in the 1980's during the failed nomination of Robert Bork to the Court. What we see today is the endgame of treating the Courts, particularly the Supreme Court, as a political football.
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