Crime & Federalism

This week's Legal Affairs Debate Club discusses the physician-assisted suicide case, Gonzales v. Oregon.  Gonzales v. Oregon can be viewed through two lenses - technical or philosophical.  First, did the Attorney General properly interpreted the Controlled Substances Act, which allows doctors to prescribe medication for "legitimate medical use," as prohibiting doctors from prescribing a lethal dose of drugs?  In other words, is prescribing a lethal does of drugs a "legitimate medical use."  Second, and more broadly, may a single administrative actor, unaccountable to the electorate, preempt a state's duly-enacted law?

Jon Adler and Wesley Smith are debating the issue, with Adler taking the pro-federalism side.  You can read the debate here.  Meanwhile, Wesley Smith made one point I'd like to refute:

The federal government has not attempted to invalidate Oregon's law that permits physicians to issue a lethal prescription to a dying patient who requests it. What Attorney General John Ashcroft did do was interpret the federal Controlled Substances Act (CSA) as barring narcotics, which are regulated by the federal government, from being prescribed by physicians to intentionally cause the deaths of patients. The federal claim is that prescribing controlled substances to cause death is not a "legitimate medical use" of controlled substance under the CSA, which is a federal law.

This is a classic Lottery Case hypothetical, which might bode poorly for the citizens of Oregon.  In The Lottery Case (a pre-Wickard v. Filburn opinion) Congress wanted to prohibit lotteries.  Since Congress lacked the power to directly ban gambling, it banned the interstate shipment of lottery tickets.  Unfortunately, the Supreme Court held that although Congress had merely disguised the exercise of a police power as an exercise of the commerce power, the law would remain valid.  The Lottery Case, by the way, gave birth to the current constitutional abomination of our federal criminal code.

In any event, it's easy to see the difference between direct and indirect invalidation.  If you can't directly overrule the law, you threaten to take the license of any doctor who complies with the law.  Indeed, were this a preemption case, no one would seriously argue that the state regulation would remain valid.  (A state law is preempted where it's impossible for a person to comply with state and federal law.  Here, the doctor can comply with state law only by violating federal law.)  Why then, does Mr. Smith make that argument?  Surely he doesn't think he'll fool Prof. Adler - or anyone else - with this weak argument.  Perhaps he is isn't used to debating with critical thinkers. 

In any event, what's most perverse about the assisted suicide case is that one man, John Ashcroft (and now Al Gonzales) is imposing his will upon the entire state of Oregon - and indeed, the entire United States.  Indeed, the authors of the Cato Institute's amicus brief make the point beautifully:

Here, an unelected regulatory agent of the executive branch of the federal government has attempted to void, through administrative action, not one but two ballot referenda duly conducted by the citizens of a sovereign state who sought to secure for themselves the right to obtain medical advice and assistance at the end of life.

Read Cato's brief.  Although I look forward to reading the rest of the debate, there are two particularly tough issues that will hopefully be addressed:
    1.  Is Chevron's deference to administrative agency interpretation warranted where it enables one person to overrule the expressed policy determination of millions of voters.
    2.  After Raich, does Oregon's law stand a chance?

I have my own views on these matters, but I'll see whether Adler exhausts these points before offering my (much less informed) views.

UPDATE:  Oops, it seems that Wesley Smith made the bad argument noted above because he's intellectually dishonest.  In an earlier column, he wrote:

But the majority opinion [in Raich], written (surprisingly) [Ed. - not to anyone who understands Commerce Clause jurisprudence] by Justice John Paul Stevens, also invoked the Constitution’s Supremacy Clause as “unambiguously” providing “that if there is any conflict between federal and state law, federal law shall prevail.”

As applied in Raich, this means that the federal government is entitled to enforce federal law against medical marijuana users even in the face of contrary state laws, a ruling clearly applicable to the assisted-suicide controversy. And if the Court found this to be true for medical marijuana — which, after all, involves mere symptom relief — it hardly seems likely that it would reach a drastically different conclusion regarding the prescription of more potent controlled substances with the intent to kill.

In other words, in Mr. Smith's own words, the Attorney General in Gonzales v. Oregon is seeking to "to enforce federal law against [doctors] even in the face of contrary state laws."  So much for his original argument that "The federal government has not attempted to invalidate Oregon's law that permits physicians to issue a lethal prescription to a dying patient who requests it."