One of First SCOTUS Cases of Roberts' Court

[Annie]

I love this editorial, it hammers home what federalism is and also serves as my bottom line reason that I thought the feds trying to insinuate themselves in Shiavo case was just wrong.

I remember when Ashcroft did this using The Controlled Substances Act. Same bells started ringing. I will be very interested to read what Roberts writes, as it will give us some insight into the future of the court.

http://www.opinionjournal.com/editorial/feature.html?id=110007380

REVIEW & OUTLOOK

The New New Federalism
Liberals discover states' rights.

Sunday, October 9, 2005 12:01 a.m. EDT

The John Roberts era began this week at the Supreme Court, and one of the first cases on the docket stands to tell us a good deal about the new Chief Justice's view on federal power. On Wednesday the Court heard oral arguments in Gonzales v. Oregon, in which the Justice Department is challenging Oregon's so-called assisted-suicide law, using the federal Controlled Substances Act as a club.

The Oregon case will be an early test of whether the Roberts Court will continue and extend William Rehnquist's legacy of restoring meaning and force to the notion that our system of government is one of limited and enumerated powers. For at bottom, the Oregon case turns on whether the Attorney General can, by an act of administrative fiat, nullify the expressed will of a majority of voters of one of the 50 United States.

The case dates from 2001, when then-Attorney General John Ashcroft asserted the authority under the Controlled Substances Act to bar doctors from prescribing the lethal dose of barbiturates that, under the Oregon law, terminally-ill patients are allowed to use to end their own lives.

It's clear the Controlled Substances Act gives the federal government the power to regulate, bar or restrict drug availability, up to a point. The question in Gonzales is whether the AG can use that power to accomplish a quite different public-policy goal--the neutering of Oregon's assisted-suicide law--simply by asserting that taking drugs to end one's life is not a "legitimate medical purpose" for a barbiturate. That law, we should add, was twice endorsed by Oregon voters in statewide referendums.

In other words, this is a states' rights case, but with an ironic twist. States' rights has generally been considered a "conservative" issue. But in this case, as in the Raich medical marijuana case the Court decided in June, the rights in question are a state's desire to pursue what are generally regarded as liberal social policies.

So some on the left have suddenly discovered, after years of promoting unlimited national power, that federalism has its uses after all. Meanwhile, some social conservatives are ignoring their federalism principles in order to enforce from Washington a policy outcome that they favor (preventing the legalization of assisted suicide).

But federalism is not a left-right issue, or at least it shouldn't be. It's a question of freedom and good governance. The last time assisted suicide came before the Supreme Court, in 1997, there was no such conflict. In Washington v. Glucksberg, the plaintiff sued seeking Supreme Court recognition of a Constitutional right to assisted suicide, and the Court ruled unanimously that no such right existed. At the end of the decision, Chief Justice Rehnquist wrote: "Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society."

This addendum, set off from the body of the decision, evokes one of the many criticisms of Roe v. Wade--that it substituted the opinion of a handful of jurists for what would have been a contentious, but in the end healthier, open and democratic debate over where to draw the line on the legality of abortion. It also imposed a uniform legal standard where none was evidently necessary.

A finding for the Attorney General in the Oregon case would repeat that mistake on the question of assisted suicide. We have never been proponents of physician-assisted suicide as a matter of public policy, but as Rehnquist noted in Glucksberg, that's a question that should be settled democratically, not by judicial or regulatory diktat.

 

[Mr. P]

I love this editorial, it hammers home what federalism is and also serves as my bottom line reason that I thought the feds trying to insinuate themselves in Shiavo case was just wrong.

I remember when Ashcroft did this using The Controlled Substances Act. Same bells started ringing. I will be very interested to read what Roberts writes, as it will give us some insight into the future of the court.

http://www.opinionjournal.com/editorial/feature.html?id=110007380

I like it too and am very interested in reading the decision.