Do I think that the CSA regulations at issue in Oregon are unconstitutional under the Commerce clause? Yes, I do, and I bet that Justice Thomas would agree. But Thomas didn't concur in the judgment on those grounds -- and rightly so. Bill Ardolino reminds me that I wrote about this in a comment I left on INDCJournal in October:
The Spectacle Blog
Here's someone I bet you never see again referring an important NFL playoff game. Pete Morelli was the genius last Sunday who on review reversed an unmistakeable interception by Pittsburgh's Troy Polamalu, giving the Indianapolis Colts undeserved new life late in a game they otherwise would have lost right there.
But never fear -- Morelli has all the makings of a Democratic appointee to a federal court. The founding fathers of the NFL's challenge procedures, not to mention common law, established that no call can be overturned without "indisputable visual evidence" that the initial call was incorrect. So what did Morelli do? He not only ignored that basic understanding and common practice, but wrote new law out of whole cloth, claiming Polamalu failed to intercept if his knee remained on the ground when he subsequently fumbled after having clearly caught the ball.
Too bad for Morelli that the NFL's Supremes promptly overruled him on Monday. Would that Antonin Scalia had their clout.
Dave: I think it'd be best to wait until tomorrow, when I'll have a column on the case posted, to get into that.
I'll be debating Alan and Michael Ratner of the "Center for Constitutional Liberty" (Harrumph!) on the latest exercise of the usual suspects. The ACLU, CAIR, Greenpeace and others filed suit to stop the NSA intel gathering op authorized by the president.
I'm predicting that at least half of the plaintiffs in these lawsuits will be dismissed because they lack legal standing to sue. Moreover, the laws the plaintiffs cite doesn't say what they contend. This is a case I wish I could argue for the government.
"I have sometimes wish'd it had been my destiny to have been born two or three centuries hence," wrote Benjamin Franklin at the close of his life, near 1790, "for inventions of improvement are prolific, and beget more of their kind. The present progress is rapid. Many of great importance, now unthought of, will before that period be procured."
Poulos grants Justice Scalia his sensible definition of the phrase "legitimate medical purpose" but laments the cultural tendency toward legitimizing assisted suicide:
...we are making more of a culture of death with each passing year, and like it or not, a if a death-cultured definition of "legitimate medical purpose" has any meaning, it surely includes the prescription of drugs to produce death -- if that death is the desire of the patient. Every powerful force in the culture is pushing toward and reinforcing the definition of health as "the fulfilment of the desire of the patient."
Thankfully, though, words still have meaning and Scalia had Webster's at his side as he wrote his dissent:
Virtually every relevant source of authoritative meaning confirms that the phrase "legitimate medical purpose" does not include intentionally assisting suicide. "Medicine" refers to "[t]he science and art dealing with the prevention, cure, or alleviation of disease." Webster's Second 1527. ...
...calls for a ridiculous pun in the dissent. Scalia writes (pdf):
Since the Regulation does not run afowl (so to speak) of the Court's newly invented prohibition of "parroting"; and since the Directive represents the agency's own interpretation of that concededly valid regulation; the only question remaining is whether that interpretation is "plainly erroneous or inconsistent with the regulation"; otherwise, it is "controlling."
Get it? Afowl, parroting? Get it?
John, You criticize the liberals on the Court of inconsistency, if I read your comments below correctly. I agree that regarding home-grown marijuana as interstate commerce in Raich was quite a stretch. But do you also think that regulating a licit drug's "legitimate medical purpose" is outside the commerce clause?
Surely, assisted suicide is a state issue: The federal government doesn't belong in the middle of a state-regulated doctor-patient relationship. Except the Court ruled in Gonzales v. Raich, the medical marijuana case, that the feds do indeed belong right there. I've only read summaries of the opinions so far, but it sounds like Thomas is spot on: Kennedy pretends to make a statutory ruling based on the Controlled Substances Act, but in fact makes a constitutional ruling at odds with Raich. (Thomas correctly dissented in Raich; Kennedy joined the majority.) O'Connor, at least, is a consistent federalist (whether or not the justification makes sense), but she's leaving the Court. Kennedy and the liberals are willing to check federal power when they feel like it, but only so long as they retain the veto and don't actually establish a general principle. The hubris is breathtaking.