Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

January 17, 2006

A Clear Victory

by Doug Mataconis

The new Roberts Court has handed down its first significant opinion of the term and it is a clear victory for federalism and individual rights, and a defeat for the Federal Government

The Supreme Court delivered a rebuff to the Bush administration over physician-assisted suicide today, rejecting a Justice Department effort to bar doctors in Oregon from helping terminally ill patients end their lives under a 1994 state law.

In a 6-3 vote, the court ruled that then-U.S. Attorney General John D. Ashcroft overstepped his authority in 2001 by trying to use a federal drug law to prosecute doctors who prescribed lethal overdoses under the Oregon Death With Dignity Act, the only law in the nation that allows physician-assisted suicide. The measure has been approved twice by Oregon voters and upheld by lower court rulings.

In other words, Ashcroft tired to use a law that had nothing to do with the right to die issue to override the will of the people of Oregon. Kudos to the Supreme Court for saying no.

At issue was whether the federal Controlled Substances Act, enacted in 1970 to combat drug abuse and trafficking, allowed the attorney general unilaterally to prohibit doctors in Oregon from prescribing regulated drugs for use in physician-assisted suicide, despite state law permitting them to do so.

Writing the opinion of the court, Justice Anthony M. Kennedy said the federal law bars doctors from using prescriptions to engage in illicit drug dealing but that “the statute manifests no intent to regulate the practice of medicine generally.” Moreover, the Controlled Substances Act (CSA) relies on “a functioning medical profession regulated under the states’ police powers,” he wrote.

“In the face of the CSA’s silence on the practice of medicine generally and its recognition of state regulation of the medical profession, it is difficult to defend the Attorney General’s declaration that the statute impliedly criminalizes physician-assisted suicide,” Kennedy wrote.

Here is a link to the text of the majority opinion.

Joined by Clarence Thomas and Chief Justice Roberts, Antonin Scalia delivered one of his usual stinging dissents:

Writing in dissent, Scalia attacked the finding that the attorney general “lacked authority to declare assisted suicide illicit” under the federal law. “This question-begging conclusion is obscured by a flurry of arguments that distort the statute and disregard settled principles of our interpretive jurisprudence,” he wrote.

Scalia backed the government’s position that assisting in suicide was not a “legitimate medical purpose.” Saying that the court’s decision “is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government’s business,” Scalia wrote that “it is easy to sympathize with that position.” However, the government has long been able to use its powers “for the purpose of protecting public morality,” he said.

“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,” Scalia said. “If the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.”

As much as I respect Scalia, I think he misses the point here. The laws intent and purpose was aimed solely at illegal drug use and trafficing. It is silent on the question of what is and is not a legitimate medical procedure. In fact, it should be for the doctor, not the government to determine the appropriateness of a medical procedure. More importantly, though, if the Federal Government is going to intrude into one of the most personal, gut-wrenching decisions a person can make, it needs to (attempt) do so directly and not engage in the kind of creative legal maneuvering that Ashcroft tried here.

More importantly, this is a victory for federalism. There is nothing in the Constitution that gives the Federal Government the right, power, or authority to regulate this area of human life. If any such authority exists, it resides solely within the states. The people of the state of Oregon have chosen to allow physician assisted suicide within their borders. John Ashcroft had no right to try to override their judgment, and the Supreme Court did the right thing by telling him so.

Update: I have not had time to read through the entire opinion, but one section of Antonin Scalia’s dissent, highlighed in Ann Althouse’s post on the decision stuck out to me:

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

This is one of those times when Scalia’s deference to precedent gets the better of him. There is no such thing as a Federal police power, and never has been. The Federal Government is a government of limited powers; the things that it can do are set forth in Article II of the Constitution. If a power is not listed there, it does exist. By accepting without question a series of obviously wrongly-decided cases, Justice Scalia forces himself to endorse a point of view that ignores the meaning of the Constitution and would unjustly expand the power of the Federal Government over the states and the people.

Update 1/18/06: UCLA Law Professor Stephen Bainbridge takes a look at what Scalia’s dissent in this case means in answering the question of just exactly what his judicial philosophy is:

Some will condemn Scalia for abandoning originalism in this line of cases. Yet, I think these cases actually reveal something more interesting about Scalia, which is that he is not purely an originalist. Instead, Scalia’s jurisprudence has elements of originalism and textualism, but also of traditionalism. The latter looks at how the Constitution has been interpreted over time, such that well-established traditions become entrenched. The real problem with Scalia is that he doesn;t seem to have a hierarchy for choosing between the three.


There is much to be admired about Scalia. It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence. Nor, insofar as results are concerned, that he can be expected to bring back the Constitution from the exile to which Wickard assigned it.

In other words, don’t place your faith in one Supreme Court Justice any more than you would place it in one Senator.

Cross-Posted at Below The Beltway

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  • Peter Porcupine

    I beleive the worm is finally turning. We are recovering from the civil rights decisions of the Fifties and Sixties, and recognize that battle is over and it is time for individual states to once again decide their own destiny, free of congressional interference.

    Roe v. Wade, assisted suicide, death penalty, gay marrriage – these are all issues about which people of intelligence and good will can and will passionately disagree. We need to be able to set standards in our own communites and states, without being overruled by the dogmas of the left or right.

    I didn’t think I’d ever see it happen, but the next 2 years should be interesting.

  • John Newman

    Doug said:
    In other words, don’t place your faith in one Supreme Court Justice any more than you would place it in one Senator.

    I think it should be “Don’t place any faith in any government.”

  • John Newman

    But it’s certainly a sad commentary on the state of the laws and regulations in this country when it’s legal to end your suffering by killing yourself, but not by toking on a little weed and continuing to live. *Freedomsight blog

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