The Liberty Papers

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

Technorati Tags: SCOTUS, Supreme Court

The Ohio Supreme Court is hearing arguments today in what is being called the first significant eminent domain case to be argued since the U.S. Supreme Court’s decision last June in Kelo v. City of New London. As with the Kelo case, the case being argued this morning in Columbus involves a homeowner facing the loss of their property at the hands of a government that wants to hand that property to private developers.

COLUMBUS, Ohio — Joy and Carl Gamble say they just want to retire peacefully in the dream home where they’ve lived for more than 35 years. But the Cincinnati suburb of Norwood has other plans for the property.

Using its power of eminent domain, the city wants to take a neighborhood that it considers to be deteriorating and boost its fortunes by allowing a $125 million development of offices and shops.

And the city’s justification for taking a home that the Gamble’s have owned for 35 years ?

The city and a private developer contend that Norwood had the right to acquire the property. They also argue that eminent domain applied not because the area is “blighted,” but because it is “deteriorating.”

How the Ohio court deals with the issue of blight has important ramifications for municipalities around the country, said Steven Eagle, a George Mason University law professor who studies property rights.

“Every jurisdiction allows condemnation to relieve blight,” Eagle said. “If blight is going to be vaguely defined, then it could be open season for condemnations for redevelopment.”

Like many jurisdictions, Ohio is studying the possibility of passing a law that would limit the right of municipalities to use eminent domain to give property to private developers.

In Ohio, a new law stops local governments from seizing unblighted private property for use by private developers while a committee studies the issue. The Gambles’ lawsuit was filed before that law was passed and before the U.S. Supreme Court ruled.

Though not mentioned in the article, it appears that the Gambles cannot take advantage of this moratorium since they filed suit before the law was passed.

And, not surprisingly, the Gamble’s are upset:

The Gambles, in their 60s, hoped to live comfortably in the home they had bought in 1969. They sold their small Cincinnati grocery store, Tasty Bird Poultry, and retired five years ago.

Instead of a comfortable retirement, however, they watched their neighborhood disappear as neighbors sold willingly to developer Rookwood Partners. The Gambles temporarily left their home to live with a grown daughter in Kentucky but vow to return should they win the case.

Joy Gamble speaks bitterly about the couple’s ordeal and what it meant to see their home of 35 years, purchased after years of savings, in danger of demolition.

“When the municipalities and the people that have lots of money decide they want what you have, you don’t own it,” Gamble said. “You bought it, you paid for it, you kept the taxes up, you kept the appearance up, but it wasn’t yours.”

Jacob Sullum at Hit & Run has this to say about the importance of this case:

This is the most important state eminent domain case since the U.S Supreme Court last year upheld condemnations for private development in Kelo v. New London. The Ohio Supreme Court has declared that “the power of eminent domain may not be exercised merely or primarily to take private property for private purposes,” and it has never ruled on the condemnation of “deteriorating,” as opposed to “blighted,” property. A victory for the owners would provide further evidence that state courts are prepared to interpret state constitutions so as to curtail eminent domain abuse, meaning that new legislation is not the only solution to the land grabs encouraged by Kelo.

Keep your eyes on this one.

Update 1/12/05: Via Todd Zywicki at The Volokh Conspiracy, here are online resources related to the case:

Copies of all briefs filed in the case can be found here.

Archived video of Ohio Supreme Court arguments are available here and the direct link to the Norwood argument, in Real Media format, is available here.

Cross-Posted at Below The Beltway

Technorati Tags: Kelo, Eminent Domain, Property Rights