In Oregon Case, Court Reaffirms States' Authority

By James Hanley, Lansing State Journal, Jan. 19, 2006

Editorial

Assisted suicide result reminds that feds have limits

Federalism is one of the United States' most fundamental principles, and, for more than 200 years, there has been a perpetual contest for power between the states and the federal government.

The latest battle has gone to the states as a consequence of the Supreme Court's ruling in Gonzales v. Oregon, concerning Oregon's Death with Dignity Act that legalized physician-assisted suicide for people who are terminally ill.

This law was a citizen initiative that first passed with 51 percent of the vote in 1994, then was re-approved with a 60 percent majority in 1997. (Full disclosure: I then lived in Oregon and twice voted in favor of the initiative.)

The Clinton administration ignored Oregon's unprecedented law.

But President Bush's attorney generals, first John Ashcroft and now Alberto Gonzales, asserted the authority to punish doctors who utilized the law, basing their claim on the attorney general's authority to regulate drugs under the federal Controlled Substances Act.

This set up a contest for authority between the federal government and Oregon.

Seen as a dying relic of constitutional jurisprudence in the 1970s, federalism made a comeback during the Rehnquist era as the Supreme Court struck down several federal laws that encroached on state prerogatives. Although it came as a shock to many citizens, the court was right to assert that the federal government does not have authority over all political issues in the United States - its hands are explicitly tied by constitutional constraints on the reach of federal power.

The federal government clearly has authority to regulate the production and distribution of prescription drugs because they move in interstate commerce. But the Oregon law does not interfere with interstate commerce, so deference to the principle of federalism suggests Oregon should be given wide latitude.

Specifically at issue in this case was the question of who gets to define the term "legitimate medical purpose," the state or the federal government? In dissent, Justice Antonin Scalia argued there is an objective determination of what is a legitimate medical purpose, determined at the national level, and that granting a prescription for the purpose of ending one's life is not legitimate.

But Justice Anthony Kennedy's majority opinion argued the text of the Controlled Substances Act does not grant the U.S. attorney general the authority to determine what is a legitimate medical purpose, and in the absence of a specific grant of authority by Congress to do so, the state retains authority to make the decision.

Oddly, it was conservatives who brought us the resurgence of federalism, but it is they who now oppose it. In a variety of cases, from gay marriage to medical marijuana and now physician assisted suicide, they have sought to impose federal authority over the states.

Neither the Democrats nor the Republicans have the courage to consistently back the states.

Fortunately the court - sometimes - ignores political pressure and refreshes our understanding of our constitutional structure.

James Hanley is an assistant professor of political science at Adrian College in Adrian.

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