More On Gonzalez v. Oregon
by tgirschJanuary 19th, 2006
I blogged a while back on the Oregon assisted suicide case, but Publius has a more detailed analysis of the ruling, and argues that the “liberal bloc” of justices may not have ruled in a manner that’s as inconsistent as some have claimed. Go read it.
If I understand his analysis correctly, it comes down to deference to legislative will. In a nutshell, if a legislative body has the constitutional authority to take some action, then the judiciary should defer to the will of the legislature. If a legislature oversteps its authority, it’s the job of the court to correct that, but if not, then the legislature’s will is to be respected.
Setting aside for the moment the question of whether or not Congress has the authority to regulate in-state marijuana growth under the commerce clause (a point I can see disputing), if you operate from the assumption that it can, then the rulings in Raich and Oregon are largely consistent. Because Congress explicitly listed marijuana as an illegal controlled substance, and because (the court has held) Congress has the commerce clause authority to regulate controlled substances, the federal law trumps the state law, and the will of the legislature — criminalizing marijuana growth, use, and possession — is respected in Raich. I might not like it or agree with it, but there it is.
In the Oregon case (and unlike Raich), the federal legislature does not specifically address assisted suicide, or whether this constitutes “legitimate medical practice.” Thus, the question at hand is, in the absence of a specific federal statute covering the issue, does the US Attorney General get to interpret what does or doesn’t constitute “legitimate medical practice,” or does the Oregon state legislature? Again, the Supremes deferred to the legislature — in this case, the state legislature, since the federal legislature didn’t address the issue.
If I’m understanding and representing this logic correctly, it would be very interesting indeed to see how this court would rule if Congress passed a law explicitly defining physician-assisted suicide as not being “legitimate medical practice.”
It seems to me is that what’s at issue isn’t so much what constitutes “legitimate medical practice,” but who gets to decide what constitutes that. If we go with “Congress” as the hard-and-fast answer, that gets us back into the age-old Constitutional pickle of divining “intent,” something that’s far easier said than done. Did the Congress intend to criminalize marijuana? It seems clear that it did. Did it intend to criminalize physician-assisted suicide? I don’t think you can seriously argue that it did. Did it intend to include or exclude such suicide from the realm of “legitimate medical practice?” I think you’d have a hard time arguing either way; I’m betting that it simply didn’t occur to Congress at all. Given the lack of any explicit Congressional action on the issue one way or the other, I don’t think it’s unreasonable to defer to the legislature that did explicitly address it (Oregon’s).
Constitutional debates aside, my non-techinical, non-legal-mumbo-jumbo preference would be that California’s medical marijuana law and Oregon’s right-to-die law both stand. But IANAL, so take that (and, indeed, all of this analysis) with the requisite amount of salt.
Categories: Legal Issues |
right - in fact, deference may become a more pressing issue if bush gets a couple of more justices on the court. the real fear here is that the court starts striking down things like environmental laws. if progressives start talking the deference talk early, it will help.
the big thing here is legitimacy - it’s simply better to leave things to elected people or referenda than to one, three, or nine judges.
of course, the other side of this is roe. and the deference-in-the-face-of-ambiguity argument cuts against roe
I have to say that Roe gives me pause, but for different reasons. This is where I start to devolve into a bit of OI reasoning myself, but I think it’s pretty clear that even though the Constitution doesn’t explicitly protect personal autonomy, the framers (and those who followed) held personal autonomy in very high regard. And if abortion isn’t a personal autonomy issue, then I don’t know what is.
Of course, the federalist/originalist argument is that personal autonomy is protected from the feds by virtue of the fact that they have no explicitly-listed power to infringe upon it or to curb it; but what follows from this is that the states (or localities) could curb your personal autonomy all the hell they want, and there’s little you or anyone else could do about it (shy of a constitutional amendment, at least at the state level).
You could also argue that smoking a wee bit of doobage is also a matter of personal autonomy (and, in fact, this is why I disagree with Raich). But if there’s no basic, protected right to personal autonomy, then all my logic on Roe, Raich, and a lot of other stuff goes flying right out the window.
You are right that it all comes down to interpreting Congress’s intent. That was the point of my comments to the prior thread; like the 2001 case on med-MJ, this case was about interpreting what Congress meant to do, not what it had (or lacked) the constitutional authority to do. I still think that while either case alone is defensible, the two cases don’t square well together. Could Congress have actually intended to create a bizarro world where terminally ill patients may be allowed to O.D. themselves to death on extremely dangerous controlled substances, but not to use more measured doses of a far less harmful substance to ease the pain and stay alive? Sure, they could have, but barring any hard evidence to indicate that they did, I’d be reluctant to imply such intent.
I also think Tuesday’s case was odd as a manner of administrative law, which typically grants relatively broad authority to the enforcing agency, in this case, the AG. You can argue that it’s bad constitutional law to allow this much de facto “law” making power to an executive officer, and I wouldn’t necessarily disagree; however, it’s one thing to take this doctrine on head-on, which the Court didn’t do, and quite another to carve out a politically convenient exception while leaving the basic doctrine intact, which it apparently did. And I’m saying that as one who supports the substantive outcome of Tuesday’s case, albeit NOT the jurisprudence underlying it (i.e., I’d have found for Oregon under the Tenth Amendment, not under a tortured theory that Congress didn’t mean to do what it probably did mean to do).
Xrlq:
I think you miss my point here. I don’t think they had any intent on that one way or the other. This is why I think trying to divine intent is a fool’s errand.
To me, the interesting question (both legally and philosophically) is not “What was Congress’ intent with respect to this specific application of controlled substances,” but rather, “What was Congress’ intent with respect to any application not explicitly covered?” More specifically, who did Congress intend should decide what does and does not constitute “legitimate” uses for things they didn’t specifically address. And, personally at least, even more important than that is, since Congress didn’t specifically say who gets to make that call, what makes the most sense, and what’s the most just? Never mind what they intended, since they didn’t say as much, the best we could do is guess.
But doesn’t that get back to the very sort of constitutionality argument — not at issue in this case — that you were griping about? You’re essentially saying that the feds don’t have the power to override the states in such matters, and I don’t see how this is fundamentally different from saying that the Feds’ attempt to do so is not constitutionally permitted, AKA unconstitutional. Unless I totally misunderstood your gripe, you can’t appeal to the Tenth because that wasn’t the question before the court.
Right, but the most straightforward answer to that would be the agency charged with enforcing the law in question, i.e., the AG. It’s a stretch to say that a federal law requiring that a use be “legitimate” means nothing more than that the use must not violate a state law.
Yes, but I didn’t claim to be consistent, did I? If I had had a controlling majority in the Court, Raich would have been decided the other way, and the Tenth Amendment objection would be much stronger. That issue itself would still not be before the court; however, a related, quasi-Tenth Amendment argument would be, under the doctrine of constitutional avoidance. That canon says, in a nutshell, if one plausible reading of a statute creates a constitutional problem, and an equally plausible one does not, assume that Congress intended for the clearly constitutional reading to apply.