Jens 'n' Frens
Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

"A strong conviction that something must be done is the parent of many bad measures."
  -- Daniel Webster

Tuesday, January 17, 2006 :::

The decision in Gonzales v. Oregon was handed down, and, as has been widely reported, the court upheld the Oregon assisted-suicide law by a 6-3 vote. As in a couple of medical marijuana cases, though, Thomas has hinted that he could have been on the side of the states if only they had been willing to raise the argument that the controlled substances act itself is unconstitutional.
I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (THOMAS, J., dissenting); cf. Whitman, supra, at 486-487 (THOMAS, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States' "'traditional . . . powers . . . to protect the health, safety, and welfare of their citizens.'" 2 Raich, supra, at ___, n. 38 (slip op., at 27, n. 38). 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. Accordingly, I respectfully dissent.
And again, in the footnote:
2Notably, respondents have not seriously pressed a constitutional claim here, conceding at oral argument that their "point is not necessarily that [the CSA] would be unconstitutional." Tr. of Oral Arg. 44. In any event, to the extent respondents do present a constitutional claim, they do so solely within the framework of Raich. Framed in this manner, the claim must fail. The respondents in Raich were "local growers and users of state-authorized, medical marijuana," who stood "outside the interstate drug market" and possessed " 'medicinal marijuana . . . not intended for . . . the stream of commerce.' " 545 U. S., at ___, ___, (slip op., at 5, 16) (THOMAS, J., dissenting). Here, by contrast, the respondent-physicians are active participants in the interstate controlled substances market, and the drugs they prescribe for assisting suicide have likely traveled in interstate commerce. If the respondents in Raich could not sustain a constitutional claim, then a fortiori respondents here cannot sustain one. Respondents' acceptance of Raich forecloses their constitutional challenge.
He made this point several (~5?) years ago in the California medical marijuana case — when I believe he was writing the opinion of the court — in addition to the more recent case he cites repeatedly here.

::: posted by dWj at 7:22 PM

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Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

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