Why I am Not A Constitutional Scholar...

...Because I have no freaking idea how Gonzales vs. Oregon is not exactly the opposite conclusion as reached in Raich  (The Gonzales decision backs state law vs. federal intrusion, while Raich did the opposite).  And on top of that, everyone on the court seems to have switched sides.  Clarence Thomas appears to be confused too.


  1. Brandon Berg:

    As I said in the comments section of that Catallarchy thread, I think it has to do with the specifics of the Controlled Substances Act, and not really with the Constitution. I'm with Radley Balko in thinking that Thomas probably dissented in protest over Raich, but only because he knew it wouldn't affect the outcome.

  2. Half Sigma:

    I think that Scalia just opposed assisted suicide for religious reasons.

    Most of the justices in the majority support it on other ideological reaons having nothing to do with consistent interpretation of statutes or the constitution.

    Thomas is the only jutice who is honest here, and his dissent is pointing out they hypocrisy of the majority.

    Who knew that Thomas would wind up being the better justice than Scalia?

  3. KipEsquire:

    Simple: marijuana is illegal under federal law; morphine isn't.

    To elaborate: Congress has said in no uncertain terms that pot is illegal, regardless of what a state legislature says to the contrary. Raich was a federalism / commerce clause question.

    But Congress has said nothing about licensed physicians using legal narcotics in, shall we say, unorthodox ways. The White House and the Justice Department took it upon themselves to "read into" the Controlled Substances Act an interpretation that simply wasn't there. Hence Gonzalez v. Oregon is a separation of powers case.

    But if Congress were to pass a law expressly proscribing the practice permitted by Oregon, then it would essentially be Raich all over again, with likely the same outcome.

    Sad, isn't it?

  4. Max Lybbert:

    I can't remember who first said it, but it is precisely because of these hairsplitting cases that Judiciary Committee hearings are about questions like "why doesn't XXX apply in YYY?" When the nominee responds "why, because the Supreme Court held in ZZZ that ..." the Senators look incompetent; and that has led to Biden saying we ought to skip the Committee hearings.

    And, yes, this case is legal hairsplitting. The CSA -- the same act that makes marijuana illegal -- has a provision giving the Attorney General the ability to police the use of medications in unsafe/unhealthy ways (that, according to the *majority* opinion). Giving a medication with the intent of killing the patient is clearly unsafe/unhealthy.

    But most prescriptions *are* off-label (i.e., not for uses approved of by the FDA).

    Then again, if states are allowed to define medicines safe/healthy in the hands of "licensed physicians," what's to prevent states from defining most abortion procedures as unsafe/unhealthy? And why are states going to make a better decision than, say, the FDA? Could states permit silicone breast implants, given that the procedure of putting them in is basically the same as the procedure for saline breast implants?

  5. honestpartisan:

    The difference between these cases can be nicely illustrated as such:

    When John Ashcroft was a Senator, he got mad that Janet Reno would not use the Controlled Substances Act to stop Oregonian doctors from prescribing drugs for purposes of assisted suicide. So he tried to change the statute, and Congress wasn't interested in doing this. What he couldn't accomplish legislatively, he tried to accomplish administratively when he was attorney general.

    The Supreme Court's ruling was in part based upon statutory interpretation; that is, when Congress passed a statute that sanctioned doctors for passing prescription drugs onto the street drug trade, stopping assisted suicide was not what they had in mind. If Congress didn't intend that, then there's no conflict between the federal Act and the state law.

    In Raich, state law was in direct conflict with the federal statute. There was no dispute about congressional interpretation in Raich; it was a question of Congress had the constitutional authority to legislate on small-time possession of pot.

    I'll put it this way, just because Congress has the authority to assert authority (Raich) doesn't mean that they actually intended to assert authority here (Gonzalez).

  6. dearieme:

    I thought that your Constitution had a provision that the Fed govt has only the powers explicitly given to it, everything else being reserved to the people and the States. Shouldn't that place the burden of proof on the shoulders of the federalisers every time?

  7. markm:

    dearie me: It should, but 8 of the SC Justices only apply it to laws they don't like for other reasons. And that's assuming that Thomas was joking in his dissent.