More on Assisted Suicide

The Baseball Crank has a piece up at Red State that would seem to indicate that (as usual), I don’t know what the hell I am talking about on matters relating to the law, and my flaming of Scalia and company yesterday was misguided.

What can I say? It is Juan Cole who offers you Informed Comment. I just promised you hot air.

74 replies
  1. 1
    The Other Steve says:

    I didn’t get that impression at all from reading what you wrote yesterday and what this guy writes today.

    Rather Crank’s whole argument evolves around this point he makes:

    Physician-assisted suicide is a Bad Thing and shouldn’t be encouraged

    And I think it was clear from yesterdays discussion that that was the basis of Scalia’s dissent as well. But that’s not a point for the courts to decide, or even the justice department. It’s Congress.

    But the State of Oregon has made their opinion known, by passing a law.

    So now the question goes into, whether the Federal Congress can override the wishes of the state of Oregon. Which is quite obviously a constitutional matter.

  2. 2
    Pb says:

    Don’t surrender just yet, John…

    “I haven’t waded through all the conflicting arguments about the statutory issues in sufficient detail to have a firm grip on who has the better argument here; I’m inclined to side with Scalia” — Crank from Red State

    If you don’t think you knew what the hell you were talking about, don’t worry, you’re not alone at Red State…

  3. 3
    Steven Donegal says:

    This case was decided on very narrow grounds of statutory interpretation. The case essentially holds that Congress did not intend for the Controlled Substances Act to prohibit a physician from prescribing controlled substances to bring about the end of life and that since Congress did not so intend, the Attorney General did not have the authority to write regulations under the CSA prohibiting that conduct. It did not do any of the following:

    1. Decide that physician assisted suicide is constitutional.

    2. Decide that Congress can’t pass legislation banning physician assisted suicide.

    3. Decide that under the appropriate enabling legislation the AG can’t regulate physician assisted suicide.

    As an aside, while I am no fan of Justice Thomas, his dissent in this case is the only opinion that can be characterized as not completely results oriented. There is no way this case can be reconciled with Raich, and while I disagree with the result in Raich, Thomas is right to point that out.

  4. 4
    Jack Roy says:

    You know, John, normally I’d defer to the Crank, but I really gotta dispute this—you were right, and he was wrong, on the legal issues. It’s definitely to be conceded that the issues involved are far more complex than “is federal power good or bad? states rights good or bad?”, but the Scalia dissent is, to my eye, almost wholly without reason or foundation. Just my $0.02.

  5. 5
    Steve says:

    As an aside, while I am no fan of Justice Thomas, his dissent in this case is the only opinion that can be characterized as not completely results oriented.

    Are you kidding me?

    Justice Thomas has repeatedly indicated a willingness to overturn any case he believes was wrongly decided, including precedents that are hundreds of years old. Justice Scalia has said, “Thomas doesn’t believe in stare decisis, period.”

    And yet, when Thomas claims in this case that he is forced to dissent because of Raich – a decision he disagrees with – you think he is being something other than results-oriented? There is no explanation, other than a desire to reach a certain result, that could possibly account for Thomas suddenly discovering the virtues of stare decisis just in time to join the other conservative justices in dissent in this case.

  6. 6
    Jack Roy says:

    Hi, Steve D. Sorry, gotta call you out on this. First, #1 is nonsense—physician assisted suicide can’t be either constitutional or unconstitutional, because of the state action doctrine. #2 and #3 are definitely true, and it’s definitely worth pointing out that the dispute was about what Congress did do, rather than what it can do, but I find it utterly mysterious when people can’t reconcile this case with Raich. Raich held that the Controlled Substances Act indicated the Congressional intent to, you know, control substances; the case yesterday held that Congress didn’t intend that same Act to regulate one aspect of the practice of medicine. Which is wholly consonant with the Congressional intent that I garner from going so far as to read the title of the Act. The supposed conflict is, frankly, illusory, and it would seem only to be an issue if you thought that this case was, in fact, about the constitutional limits of Congress’s power.

  7. 7
    Francis says:

    Flaming Scalia is perfectly appropriate. Here’s why:

    a. States traditionally and still regulate the practice of medicine.

    b. Oregon decided that the practice of medicine would include assisting in suicide (and, since everybody dies and since medicine has long included alleviating pain and other palliative measures, this decision is not wholly irrational).

    c. Oregon decided that the means by which physicians would assist suicide would be through the administration of controlled substances.

    d. AHA! The feds have long regulated controlled substances. So the AG, who first tries to get the authority from Congress and fails, unilaterally decides that he can use his authority under the Controlled Substances Act (CSA) to prevent Oregon from allowing physician-assisted suicide.

    e. Now, any rational mortal can see that this is a case of the tail wagging the dog. The AG is seeking to leverage his CSA power to overturn a traditional state power.

    f. Decisions about judicial deference to executive agency rulemaking are all over the map. Sometimes the courts defer to agency rulemaking, sometimes not. The point is there is plenty of precedent for the Court to inquire closely whether any rule is within the scope of an executive agency’s power, or not.

    g. There was lots of evidence that the AG was way out of the park here, including the fact that he tried to get legislation passed on point when he was still in the Senate and was rebuffed.

    h. What was so objectionable about Scalia’s dissent is that he asserted to himself the right to determine that physician-assisted suicide is not within the scope of the legitimate practice of medicine. Now, this would have been bad enough from a liberal judge, but for someone who purports to be committed to states’ rights and legislative deference, this is an astonishing claim. Put simply, Scalia is not just a hypocrite but, even worse, a pious one.

  8. 8
    Jack Roy says:

    Well, Steve (non-D.), in fairness, Steve Donegal didn’t say Justice Thomas is always principled, he just said his opinion in this case was. I disagree, but I have to concede it’s a colorable argument.

  9. 9
    Jack Roy says:


    Must quibble with your assessment of the administrative law precedents. I don’t think they’re all over the map, even if the field is complicated. Rather, they (sensibly) do support the rules that:

    A) Administrative interpretations of administrative regulations are due a lot of deference; but
    B) Administrative interpretations of congressionally enacted statutes are due quite a bit less deference.

    Which makes intuitive sense to me. The majority correctly noted that the AG’s interpretation wasn’t sufficient to change the content of the Controlled Substances Act, and the dissent incorrectly argued that what the AG was really interpreting was his own regulations, but it wasn’t just a case of “some precedents go this way, and some go that way, so it’s six-to-seven and pick-’em.”

  10. 10
    Steve says:

    Glenn Greenwald has a very good post on the history of this issue here. It’s worth a read.

  11. 11
    Pooh says:

    Jack Roy,

    Quite so. Ashcroft (and thus Scalia) is quite simply bootstrapping. He’s attempting to create ambiguity at the second level of analysis (administrative regs) to cast doubt on what should be clear from the first level (statutory language).

    As far as Thomas holding his hands up and saying ‘Raich, wrongly decided that it is, compels me thus.’ is risibile. From, oh, 8 other justices that might fly, but not from CT.

  12. 12
    slickdpdx says:

    I have yet to see anyone deal with the AMA Code of Ethics, which makes the Ashcroft position re: legitimate medical practices totally, if you will, legitimate. The court seems to be inviting something no appellate court would want: a flood of administrative cases.

  13. 13
    Francis says:

    Jack Roy —

    fair enough. i was trying to make a broader point for a lay audience and overreached.

    one thing that bothered me in my (admittedly quick) read of Scalia’s dissent is that it seems to have argued that the degree of deference was dispositive. In environmental cases, i’ve seen courts overrule agency rulemaking even in those circumstances where the highest degree of deference was owed, on the grounds that the rulemaking was inconsistent with the underlying statute. (i’m thinking of recent circuit cases reviewing the regulatory definition of adverse modification of critical habitat under the Endangered Species Act, for law geeks.)

    so even if a great deal of deference was owed to the AG, the Court could still have legitimately overturned the AG’s rule.

  14. 14
    Francis says:

    slickdpdx: The AMA code of ethics is no more binding on a state than the ABA’s code. Oregon voters chose to disagree, as is their right.

  15. 15
    Barbar says:

    The dissents in this case based their opinions on their own idea that physician-assisted suicide isn’t medicine. So much for careful reading of the law, judicial restraint, and all that other baloney. Not that this should be news.

  16. 16
    Mr Furious says:

    Hold on, John. I am a Crank fan and a regular reader and commenter at his site for years. But he is incredibly partisan and biased at times. And when it comes to matter of Law, when he can employ his “expertise,” he can simply innundate with legalese to overwhelm the layman into accepting his opinion as fact.

    I haven’t read his piece over at Red State yet, but I’m imagining that’s what I’ll find.

  17. 17
    Ancient Purple says:

    From Crank:

    Physician-assisted suicide is a Bad Thing and shouldn’t be encouraged. I’m not an absolutist on end-of-life issues, for a variety of reasons – while there are common themes with the abortion issue, there are also a welter of complications on questions of heroic medical care, individual autonomy, and the like – and I think the government can best manage those complications by giving broad range to different people’s different moral choices without a lot of interference. Nonetheless, inserting doctors – with their conflicting financial incentives and natural God complexes – into the business of ending the lives of people who aren’t imminently about to die is just a bad idea.

    I am perplexed by this line of reasoning. It almost reads as a manifesto on how physicians can make stellar profits this fiscal year.

    No doctor is forced to participate in assisted suicide in Oregon, and considering the fact that there have only been about 200 cases, it would strike me as a road to bankruptcy to plan your practice and financial survival on it.

    Still, Crank doesn’t actually say why physician-assisted suicide is a bad thing other than some unsubstantiated notion that the doctors involved might muck things up.

    Even if it were bad, I think most people (and certainly the people of Oregon) believe that having a terminal illness and spending the next six months waiting for the Grim Reaper to visit you is probably a whole lot worse.

  18. 18
    Lines says:

    As far as I can tell, the AMA defers to State’s Rights when no other guideline is available.

    Besides, if the AMA wants to toss out the few thousand doctors that are certified by them in the state of Oregon, all Oregon has to do it create a new certification. The AMA doesn’t hold a patent on medicine.

    Also, I’d like to thank you guys for the great commentary on this, its been great seeing a good discussion that is understandable.

  19. 19
    Krista says:

    really gotta dispute this

    Must quibble with your assessment of the administrative law precedents

    Quite so.

    fair enough.

    I am perplexed by this line of reasoning

    My goodness…civil, polite debate…it’s like Balloon Juice Bizarro world.

  20. 20
    slickdpdx says:

    Oregon voters may have reached a consensus that doctors should be permitted to assist suicide – but what does that necessarily have to do with federal regulation of controlled substances? The AG position regarding legitimate medical procedures was supported by the vast majority of states (49-1? 48-2?) and by the independent professional medical body. A judge shouldn’t be bending over backwards to undo what seems to me a completely defensible interpretation of the CSA statute, regardless of what Oregon voters think about exceptions for criminal liability in assisting a suicide.

    For those bemoaning the alleged hypocrisy of Scalia, death of states rights and/or lack of principled judicial restrint: consider that under the dissent Oregon doctors would most likely be entitled to prescribe a lethal dose of a drug that is not a federal controlled substance or would be entitled to assist a suicide performed in other ways. I’m sure Jack Kevorkian’s disciples can build a great guillotine!

  21. 21
    Steve says:

    The point is, everyone knows Congress didn’t pass the CSA in order to ban assisted suicide or regulate the practice of medicine. It’s not appropriate for John Ashcroft to reinvent the statute to accomplish through the back door what opponents of assisted suicide can’t do through the front door.

    If Congress really wants to get involved in policing State definitions of what it means to practice medicine, they should do so. Except the Republicans already tried to get that legislation passed, and they failed, which is why they had to resort to this back-door method in the first place. If Ashcroft’s position really enjoyed the broad support of 49 out of 50 states, or whatever majority you want to claim, you’d think they’d have no problem getting a law through a Republican-majority Congress.

  22. 22
    Lines says:


    before this discussion gets dragged down much lower, can I ask for a source for your claim that the states agreed with Ashcroft’s power grab towards “acceptable medical practices”?

  23. 23
    slickdpdx says:

    How many states permit doctors to prescribe lethal overdoses? I can’t imagine why you think the discussion is getting dragged lower, except that you don’t agree. Knock off the personal stuff.

  24. 24
  25. 25
    slickdpdx says:

    Steve: You say “[t]he point is, everyone knows Congress didn’t pass the CSA in order to ban assisted suicide or regulate the practice of medicine.”

    Yes, but they DID pass the CSA to regulate the use of controlled substances, even by doctors. And that’s what the dissenting opinion is about.

  26. 26
    Steve says:

    No, they didn’t. That’s why there’s a medical-purpose exception.

    The fact that Justice Scalia, in his infinite wisdom, believes that physician-assisted suicide is “surely” not a legitimate medical purpose does not give him the right to overrule the people of Oregon. And there is absolutely zero in the text or the legislative history of the CSA to support the notion that the statute was intended to make the federal government the arbiter of what constitutes a legitimate medical purpose.

    The Attorney General has the authority to schedule drugs, but he is not given the authority to overrule a state’s determination of what a “legitimate medical purpose” may be.

    Putting all this aside, do you even deny that Ashcroft’s true motivation was to block assisted suicide, not to regulate controlled substances?

  27. 27
    slickdpdx says:

    I’m not saying the dissent is necessarily correct: although I beleive it is. What I AM saying is it wasn’t dishonest, Ashcroft was not engaged in some kind of outrageous powergrab. Legitimate medical procedures do not include euthanasia any where but Oregon as far as I know. The AG, in giving some guidance to practioners about how the statute would be applied, was taking the MOST reasonable position about legitimate medical procedures. The excess angst is misapplied here.

  28. 28
    slickdpdx says:

    And, as pointed out in Scalia’s dissent: the regulation of controlled substances has been employed in areas not limited to addiction and which could be characterized as local practice of medicine issues. I think he cited steroids, cosmetic use, and another, in addition to suicide.

  29. 29
    slickdpdx says:

    I’m not sure how Ashcroft’s motivation matters. I’ll grant that Ashcroft is, like 49 states and the AMA, opposed to euthanasia and regards euthanasia as an illegitimate medical procedure.

  30. 30
    Anderson says:

    I find it utterly mysterious when people can’t reconcile this case with Raich. Raich held that the Controlled Substances Act indicated the Congressional intent to, you know, control substances; the case yesterday held that Congress didn’t intend that same Act to regulate one aspect of the practice of medicine.

    Wow, Jack Roy is literally smarter than all of RedState put together (present company excluded, Mr. Cole).

  31. 31
    Lines says:

    Ashcroft specifically went looking for any possible law that would allow him to shut down assisted suicide in Oregon. He made that very clear, so why are you defending him? Ashcroft believed that he had the power to dictate medical practice and this SC decision just proved that he didn’t, at least not through the legal maze he attempted to drag everyone through.

  32. 32
    Lines says:


    One of the reasons patients may consider suicide and request physician assistance is because of untreated pain, pain that today is more likely treatable.

    Can you now supply a source that doesn’t step into a land of fantasy? How about one that supports your 49-1, 48-2 claim?

  33. 33
    Lines says:

    And from the actual Ashcroft Directive:

    Determination on Use of Federally Controlled Substances to Assist Suicide. For the reasons set forth in the OLC Opinion, I hereby determine that assisting suicide is not a “legitimate medical purpose” within the meaning of 21 C.F.R. § 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the CSA.

    Since he wrote it, I would assume that the “I hereby determine” is “Ashcroft says so”. He obviously went out of his way to strike down the Oregon law any way he possibly could, even going so far as to petition the DEA on the topic and after getting the answer he wanted, proceded to rush forward with it.

  34. 34
    slickdpdx says:

    49 states do not permit euthanasia. The AMA does not support it. If you thoroughly explored the site you would see that despite the policy argument recognized there, the conslusion of the vast majority of practioners is that palliative measures should be increased, rather than that the patient be killed.

  35. 35
    Steve says:

    The fact that you refer to physician-assisted suicide as “euthanasia” pretty much betrays your bias.

    The fact that you can’t even admit Ashcroft was trying to do through the back door what he hadn’t been legally authorized to do through the front suggests we’re not going to be making any more progress with this discussion.

  36. 36
    slickdpdx says:

    Sorry, should read “conclude” and “practitioners”.

    I’ll bow out now. I’ll see if anyone comes up with somewhere – besides Oregon – in the U.S., that permits euthanasia as a “legitimate medical procedure” (not counting non-human animals).

    I personally support Oregon’s assisted suicide law. But, I recognize that Ashcroft was on solid ground and that the dissenters are not acting like partisan hacks.

  37. 37
    Lines says:

    Just because the state doesn’t allow for euthenasia doesn’t mean that they agree with the AG’s decision, which is how you worded your opinion. Its also very clear that the site you linked is anti-euthenasia and will only publish information that agree’s with its already determined conclusion. The “vast majority of practitioners” is the same as “I asked my neighbor and he agreed” when it comes to issue partisan sites like that. Information from sites that have a pre-determined goal is not useful in making a personal decision, its only useful in justifying an already held belief.

  38. 38
    slickdpdx says:

    You both persistently confuse bias with some kind of logical argument, as opposed to a reason to submit an argument to close inspection.

  39. 39
    slickdpdx says:

    LINES: I put up. Now you put up. Euthanasia = considered legitimate medical procedure where and by whom?

  40. 40
    Steve says:

    Lest we be unclear, the difference between physician-assisted suicide and euthanasia is that in the latter case, the physician kills you, while in the former case, you kill yourself.

    The reason Dr. Kevorkian ultimately ended up going to jail is because he crossed the line by giving someone a lethal injection, as opposed to simply helping them kill themselves.

  41. 41
    slickdpdx says:

    Physician assisted suicide = legitimate medical procedure: where and by whom, outside of Oregon? Name a state medical regulation or statute outside of Oregon. (I’m sure you can come up with plenty of minority opinions.) The AMA says no. 49 states say no. How is it crazy to say that its not a legitimate medical procedure given that state of affairs (regardless of whether you and I think it should be.)

  42. 42
    slickdpdx says:

    From a Frontline documentary:

    As of April 1999, physician-assisted suicide is illegal in all but a handful of states. Over thirty states have enacted statutes prohibiting assisted suicide, and of those that do not have statutes, a number of them arguably prohibit it through common law. In Michigan, Jack Kevorkian was initially charged with violating the state statute, in addition to first-degree murder and delivering a controlled substance without a license. The assisted suicide charge was dropped, however, and he was eventually convicted of second degree murder and delivering a controlled substance without a license.

  43. 43
    slickdpdx says:

    Also from Frontline:

    Only one state, Oregon, has legalized assisted suicide. The Oregon statute, which went into effect in October 1997, provides that a doctor may prescribe, but not administer, a lethal dose of medication to a patient who has less than six months to live. Two doctors must agree that the patient is mentally competent and that the decision was voluntary. As of April 1999, 23 patients were given drugs under the statute, and 15 of them used the drugs to commit suicide. A report released by the Oregon state Health Division reviewing the first year of the law’s implementation found that the law was working well and had not been subject to abuse.

    At the federal level, the only legislation addressing this issue (as of April 1999), is the Assisted Suicide Funding Restriction Act. This law prohibits federal money from being used in support of physician assisted suicide. However, in 1998, House Judiciary Chairman Henry Hyde and Senator Don Nickles introduced bills in the House and Senate which would revoke the licence to prescribe federally controlled drugs from any doctor who participated in an assisted suicide. If such legislation passed, doctors in Oregon, or any other state that legalized assisted suicide, would be subject to the federal sanction even though their actions were permitted under state law. The bills were not enacted into law before the end of the congressional session, but may be revived in 1999.

  44. 44
    Steve says:

    You have ignored this same point a hundred times so I don’t know why I bother making it again.

    The issue is not whether it’s reasonable to conclude that physician-assisted suicide is not a legitimate medical procedure.

    The issue is where in the CSA the Attorney General is given the power to determine what is and what is not a legitimate medical procedure.

  45. 45
    slickdpdx says:

    I cited the AMA ethical code section yesterday: have yet to see an opposing professional code or statute in the U.S. outside of Oregon. Rule 2-211

    Okay, this time I really have to go. I apologize to John for the multiple posts!

  46. 46
    Steve says:

    The issue is where in the CSA the Attorney General is given the power to determine what is and what is not a legitimate medical procedure.

    Citing the AMA won’t cut it, sorry.

  47. 47
    Lines says:

    My point in attacking your 49-1 statistic is that its a broad generalization that you seemed to use to indicate that the majority of health professionals in those other 49 states also do not support assisted suicide. The AMA is a certification organization with little to no real power. If they continue to play divisive politics and support divisive politics, they will find out they can be replaced on a state by state basis until they don’t exist anymore. Your 49-1 statistic is hollow and empty as at one point it was probably 49-1 in favor of slavery and segregation. Things change and progress moves forward. Ashcroft and his decision was an attempt to stop that progress through whatever means he could grab.

  48. 48
    slickdpdx says:

    Steve: I did address that point. Sorry if it wasn’t clear. I supposed that, in that case, the U.S. Sup. Ct. is inviting a million stupid little administrative law appeals thanks to this micromanagement of this unexceptional executive implementation of a statute. Your distinction between euthanasia and assisted-suicide is well taken.

  49. 49
    slickdpdx says:

    Whatever: you guys obviously have no authoritative binding source, outside of Oregon, in the U.S., saying that assisted suicide is a legiitimate medical procedure. Implementing a law that restricts the use of controlled substances to legitimate medical procedures as excluding assisted suicide is unremarkable.

  50. 50
    Steve says:

    Once again, the Attorney General has no power under the CSA to overrule state determinations of what is and is not a legitimate medical procedure. If he did have the power, I would stipulate that his determination in this case would be considered eminently reasonable. We could go on like this all day.

  51. 51
    slickdpdx says:

    Agree to disagree. Thanks for the conversation. I’m still waiting for my ride…

  52. 52
    slickdpdx says:

    P.S. re: whether the power to regulate the use for legitimate medical procedures existed at the federal level – I believe that is the reason Scalia cited the prior instances of federal regulation of legitimate procedures – steroids and cosmetic uses and whatever the other one was.

  53. 53
    Barbar says:

    slick, the issue isn’t simply federal regulation, because Congress never passed a law regulating doctor-assisted suicide. So you have to talk about Ashcroft’s powers and where they come from. Can we agree on at least that much?

  54. 54
    Lines says:

    slick, you ignore the consenting opinions that gives the right to medical procedures to the States, not to the Fed. In focussing so narrowly on Thomas’ freakish dissent, the majority opinion has been ignored, which stated that the states still maintain the right to legislate medical procedure.

  55. 55
    ImJohnGalt says:

    Um, at the risk of completely jacking this thread, what if the AG determined that the medical procedure known as abortion was illegitimate. Is that within his purview?

  56. 56
    slickdpdx says:

    John Galt: Good question. I don’t know what support he would have that its NOT legitimate (as opposed to assisted suicide where the opinion that matters is overwhelmingly the other way). But assuming for the sake of argument that the medical community and states generally found that it was illegitimate and that it is possible to use a controlled substance to cause an abortion: under those circumstances saying you can’t use controlled substances to perform abortions would be a reasonable interpretation. Of course, he couldn’t use that law to block abortions committed without the use of controlled substances.

    Fortunately, that’s not the situation here and now.

  57. 57
    Barbar says:

    slick, under your (faulty) interpretation, how many states would have to pass Oregon’s law before Ashcroft would lose the power to overturn them?

  58. 58
    Lines says:

    opinion that matters

    Again, baseless assertions on the fact that the states are woefully conservative on the issue of assisted suicides doesn’t mean that they are the only opinion that matters. Many states have given inclinations that Oregon is the testbench and if the law is upheld that they will begin pursuing much of the same in the near future. Washington, Massachusettes and others are definately watching this all very closely, as they’ve actually had legislation drawn up and rejected on fears that the AG would do exactly what it did.

  59. 59
    Steve says:

    Pfft, of course the Attorney General can’t use the CSA to block abortions. Abortion, unlike assisted suicide, has been determined to be a constitutional right. The government can’t place an undue burden on it, which criminalizing the drugs used in abortion would certainly do.

    If there were a constitutional right to physician-assisted suicide, which there isn’t, this case would have been a nonevent.

  60. 60
    Mona says:

    Altho this case was ostensibly a matter of statutory construction, for the reasons Thomas sets forth in his wholly honest dissent, the corrupt application of the Commerce Clause in Raich intellectually compels the Court to vote against the State of Oregon. Thomas was righteous in Raich, and he is obviously disgusted that the liberals in that case failed to apply their 7 month old precedent in a case where they suddenly become born-again advocates of states rights, merely because they liked the result of that in Oregon, but didn’t for California. See Glenn Greenwald’s post with comments here.

  61. 61
    Steve says:

    So Mona, you believe that when Clarence Thomas says he is compelled by stare decisis to follow a decision he disagrees with, that is a “wholly honest” position?

  62. 62
    Mona says:

    Steve, yeah I do — his vote couldn’t have mattered in that case, and his opinion is precisely — and acidly — correct. Raich was an abomination, and he dissented in that case, but as a holding that is only 7 months old, stare decisis could hardly be ignored; except by the intellectually dishonest who are entirely result-driven. The liberals lacked sympathy for patients who need cannabis, but they approve of assisted suicide.

    Thomas was sickened by them, as well he should be. Scalia voted wrong in both cases, but he is an honest whore. Do note he and Thomas wrote very, very different dissents in the Oregon case. Thomas’s was motivated by sheer disgust with Raich; Scalia’s by a corrupt discussion of both statutory construction and the Commerce Clause.

  63. 63
    al maviva says:

    Cliff’s Notes version of comments on this post:

    – Scalia and Thomas are pricks so they’re wrong.

    – No they aren’t.

    – You betcha they are.

    – Right.

    – Indeed.

    – Serious attempts at intelligent critical comment comparing/contrasting cases & larger trends that may be reflected/reflective of this case.

    – Shut up.

    – Indeed.

    – Right.

  64. 64
    Barbar says:

    Too bad you weren’t able to pick up on the several substantive points raised during the thread, Al. In short: where does Ashcroft gain the power to determine that doctor-assisted suicide does not fall under medicine. Scalia’s argument, repeated by slick here, was essentially that Ashcroft’s position is self-evident because no one important disagrees with him. This is fine if you believe that doctor-assisted suicide is immoral and you don’t care if Supreme Court justices engage in results-oriented judging.

    Of course the state of Oregon disagreed with Ashcroft, but it is obvious that the state’s view has no bearing on such cases. Haven’t you heard of the conservative judicial doctrine of “states are never right”? Right.

  65. 65
    Steve says:

    Think honestly about what your reaction would be if I said the conservative justices voted a certain way on a case because they lacked sympathy for cancer patients, and you’ll see why I think you’re making a nonserious argument grounded in pure distaste for the liberal justices on the Court.

    Now, add to this the absurdity of arguing that medical marijuana is a conservative cause in the first place, that the liberal bloc would be unanimously opposed to for results-oriented reasons. There’s a reason why California and not Nebraska passed the law in question.

    The argument that Justice Thomas, who disdains stare decisis in virtually every instance, was forced to find religion in this case because the prior ruling was so recent also makes no sense. The Supreme Court has often changed its mind on an issue within the span of a year or two; most people would agree that precedents typically become more settled, not less settled, over the course of time. Justice Thomas does not simply take the position that he may disregard precedent when circumstances have changed; he takes the position that he may disregard precedent whenever he believes it was decided incorrectly. The passage of time has nothing to do with the latter consideration.

    Are you seriously contending that if the Court reaffirmed abortion as a constitutional right, and another abortion case came up again a few months later, Justice Thomas would vote with the majority because the precedent is so recent? Of course not. It is an everyday occurrence for a Justice to dissent, and then when the same issue comes up again a few months later, to dissent again for the same reason.

    You are simply starting from the premise that Justice Thomas is intellectually honest and arguing backwards, making whatever case will support your conclusion, but you’re not thinking about whether your case makes sense. I might agree with you about Justice Thomas in most instances, but in this case, it’s very hard to argue that he actually felt constrained by stare decisis.

  66. 66
    Mona says:

    Think honestly about what your reaction would be if I said the conservative justices voted a certain way on a case because they lacked sympathy for cancer patients, and you’ll see why I think you’re making a nonserious argument grounded in pure distaste for the liberal justices on the Court.

    Since I’m not a conservatrive — I’m a libertarian — I certainly have no difficulty agreeing that conservatives lack sympathy for cancer patients, Scalia did in Raich, along with a bunch of liberals. You can’t read Thomas’s dissent in the Oregon case without immediately bumping into his disgust with the majority in Raich — it was his first sentence and he hammered on it to his last sentence. And he is absolutely correct to note that the liberals in the Oregon case are acting as if they hadn’t done what they did do in Raich (Scalia at least was consistent in both) — he says they are “beating a hasty retreat,” but only from its implications they don’t like, not from the holding itself.

    If Raich is law, Oregon should have gone the other way. As Thomas insists, Raich sucks, but it is law, yet result-oriented liberals don’t care about such messy issues. Anymore than Antonin Scalia actually believes the Commerce Clause ought not be used to grant Congress carte blanche to go where it pleases — if that leads to a reuslt like threatening the Controlled Substances Act, Scalia thinks the FDR-era wheat cases are super.

    As I said, Thomas’s was the only honest opinion in the bunch.

  67. 67
    Barbar says:

    Mona, correct me if I’m wrong, but I understand the difference between Raich and Oregon to be that Congress has acted with respect to marijuana but not with respect to doctor-assisted suicide. Maybe this is a lame distinction (I’m no expert) but to me there seems to be a big difference between Congress overruling a state law and Ashcroft overruling a state law.

    Maybe Thomas has a point if the Controlled Substances Act has the exact same implications for both medical marijuana and physician-assisted suicide — could someone clarify this?

  68. 68
    Mona says:

    Maybe Thomas has a point if the Controlled Substances Act has the exact same implications for both medical marijuana and physician-assisted suicide—could someone clarify this?

    John Ashcroft saw the depraved Californians were flouting the CSA by letting sick people smoke cannabis and keep their food down, so he successfully sought to trump their state law with the heavy heel of federal power. John Ashcroft also saw that the depraved Oregonians were contravening the CSA by allowing physicians to prescribe controlled substances to cause death in the terminally ill who chose it. The CSA has always applied to physicians, who are not permitted to prescribe controlled substances in any manner or quantity the federal govt does not like.

    Doctors may prescribe most of the controlled substances, as long as they do it only for reasons the federal govt approves of. John Ashcroft doesn’t approve of prescribing for the reason the voters of Oregon twice voted into law. So, he tried to stop them, and the holding and rationale in Raich should have allowed him to succeed, unless it was overturned, but it wasn’t.

    You can read Thomas’s dissent in the Oregon case here. In my view, he is entirely correct. Including correct about Raich being bastard law, but law nonetheless.

  69. 69
    Barbar says:

    Mona, I will read the CSA first thing in the morning, but does it really treat marijuana exactly the same as the drugs used for suicide? There has to be some difference, or else it would now be legal to use marijuana for suicide but not to relieve pain. “Results-based judging” seems unlikely to create this sort of illogical split, especially since marijuana is almost certainly a less controversial issue than suicide.

  70. 70
    Steve says:

    Raich was a Commerce Clause case. This case was not. I really don’t see why anyone would claim they’re the same case. If Congress were to pass a law that expressly invalidated state assisted-suicide statutes pursuant to the Commerce Clause, then you’d have the same case. But this case was about whether Congress really gave the Attorney General the authority to overrule state determinations of what a legitimate medical purpose is.

  71. 71
    Barbar says:

    Steve — yup. According to the CSA, marijuana cannot be used for medical purposes, but morphine can. In Raich, the question is whether or not the CSA’s position on marijuana is Consitutional. In Oregon, the question is whether or not the AG can decide if physician-assisted suicide counts as a medical purpose or not. Two different cases. Thomas is still a dolt.

  72. 72
    Peter ve says:

    ” I just promised you hot air.”

    And all along I thought you were speaking in a squeaky helium induced voice…

  73. 73
    slickdpdx says:

    Now that I am back, let me note one last point if you haven’t all moved on.

    Complete judicial restraint was a difficult option here in the sense it seemed like you had to choose the federal govt or the state. Scalia’s dissent read both statutes as far as you can go without infringing on the other. Where they conflicted, he made a defensible choice.

    I support assisted suicide, I find the drama concerning Ashcroft and Scalia to be overheated. some people confuse great policy arguments about what the law is with arguments about the legal decision in the case.

    To me it is interesting that the Oregon law provides: “Construction of Act. Nothing in ORS 127.800 to 127.897 shall be construed to authorize a physician or any other person to end a patient’s life by lethal injection, mercy killing or active euthanasia. Actions taken in accordance with ORS 127.800 to 127.897 shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law. (127.880. § 3.14.) The next section (127.885) provides immunities to physicians acting under the statute. It is concerned with permitting doctors to assist suicides without facing criminal or civil penalties for the act of lawfully assisting a suicide. Its not necessarily about controlled substances. (although it only permits doctors to use “drugs” to assist suicides, it is silent regarding “controlled substances”. splitting hairs, perhaps, but no more than the majority.)

    I think it is preferable to read the statutes as compatible, if possible, rather than conflicting.

  74. 74
    slickdpdx says:

    Sorry that should say “policy arguemtns about what the law should be” in the third para.

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