The federal government has broad power to regulate legal and illegal drugs under the Controlled Substances Act. When must that power be curbed?
The Supreme Court has considered that question twice in the past year. Seven months ago, in Gonzales v. Raich, the Court ruled it constitutional for the federal government to prosecute cancer patients for using marijuana, even in a manner consistent with California's medical marijuana law, under the authority granted to Congress by the Constitution "to regulate Commerce...among the several States."
Justice Clarence Thomas noted in his Raich dissent that the respondents "use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana." By counting this as interstate commerce, the Court declined to put any limit on the reach of the CSA.
But that was then. Yesterday the Court handed down its decision in Gonzales v. Oregon, which pitted CSA regulations against Oregon's physician-assisted suicide law, which allows doctors to prescribe lethal doses of medication. The Court sided with Oregon, and five of the six justices in the majority in Oregon -- Stephen Breyer, Ruth Bader Ginsburg, David Souter, John Paul Stevens, and Anthony Kennedy -- were also in the Raich majority.
This was a case of statutory rather than constitutional interpretation. But in rejecting the Justice Department's claim that suicide is not a "legitimate medical purpose," as required by federal regulation, the Court relied on the same federalist principles they rejected in Raich. Beyond prohibiting doctors from being drug dealers, Kennedy argued for the Oregon majority,
The [CSA] manifests no intent to regulate the practice of medicine generally. The silence is understandable given the structure and limitations of federalism, which allow the States "great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons."
But it was the "structure and limitations of federalism" that the Court ignored in Raich. The majority opinion in Raich, written by Stevens, stated flatly that "the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner," and argued that this was just fine. As Thomas wrote in his Oregon dissent,
While the scope of the CSA and the Attorney General's power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Court's Commerce Clause and separation-of-powers jurisprudence.
Thomas added that the "Court's reliance upon the constitutional principles that it rejected in Raich -- albeit under the guise of statutory interpretation -- is perplexing to say the least." Is it so perplexing, though? There seems to be a simple principle at work: When must CSA power be curbed? When Kennedy and his liberal colleagues feel like it.
A simple principle -- just not a good one.
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