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 question in the assisted suicide case is a matter of reading the statute, not the Constitution. The Court is asked to decide if the Controlled Substances Act is meant to extend to doctors in a case like this. Almost certainly, it is. (Not that it’s a good law; it isn’t.)
In Raich, this sort of application of the CSA, overriding state law, was found constitutional under the commerce clause vis-a-vis medical marijuana. Now, Raich was wrongly decided. Some have speculated that the liberals, who seem to want to interpret the CSA as circumscribing executive power in this case, may be joined on the pro-Oregon side by Thomas, on commerce clause grounds. But Thomas’s general rule of thumb is to only reconsider precedent when the petitioner or the respondent requests it, and there are good reasons for that. I don’t think Oregon asked for justices to consider the Constitution at all (though I haven’t read everything related to the case); it makes a big difference.
Ardolino still doesn’t see that this is an “an overriding angle,” but it is. (John Cole, whom Ardolino links to approvingly, has grasped the point and updated his post.) That’s why I join Thomas in picking on the majority’s reliance on principles they rejected in Raich, even though I like those principles. It’s the capriciousness that’s the problem, not the practical result of the ruling.
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