I thought Conservatives were in favor of Federalism?

[slickpoppa]

Apparently only when they like the state laws:

WASHINGTON -- The Bush administration pressed the Supreme Court on Wednesday to block doctors from helping terminally ill patients end their lives, arguing that Oregon's law allowing physician-assisted suicide violates federal drug laws.

"The most natural reading of the (federal) Controlled Substances Act is ... this falls within the authority of the attorney general," said Solicitor General Paul Clement, arguing on behalf of the Bush administration.

Oregon is the only state that lets dying patients obtain lethal doses of medication from their doctors, although other states may pass laws of their own if the high court rules against the federal government. Voters in Oregon have twice endorsed doctor-assisted suicide, but the Bush administration has aggressively challenged the state law.

Justice Sandra Day O'Connor immediately challenged Clement, asking if federal drug laws also prevented doctors from participating in the execution of murderers.

Justice Anthony Kennedy said he found it "odd" that the attorney general determined physician-assisted suicide to be an abuse of drug laws, when the state of Oregon strictly limited how the drugs could be administered and in what cases.

"I don't think it's odd," Clement replied, noting that federal laws regulating drug use have been in place for more than 90 years.

The case, the first major one to come before the new chief justice, John Roberts, will be heard by justices touched personally by illness. Three justices -- O'Connor, Ruth Bader Ginsburg and John Paul Stevens -- have had cancer, and a fourth -- Stephen Breyer -- has a spouse who counsels young cancer patients who are dying.

Their longtime colleague, Chief Justice William H. Rehnquist, who once wrote about the "earnest and profound debate" over doctor-assisted suicide, died a month ago after battling untreatable cancer for nearly a year.

In 1997 the court found that the terminally ill have no constitutional right to doctor-assisted suicide. O'Connor provided a key fifth vote in that decision, which left room for state-by-state experimentation.

O'Connor is retiring, and Bush on Monday named White House lawyer Harriet Miers to replace her. If Miers is confirmed before a ruling is announced, O'Connor's vote will not count. A 4-4 tie would probably require the court to schedule a new argument session.

Dozens of spectators gathered outside the court before arguments began, waving signs supporting the Oregon law. "My Life, My Death, My Choice," read one sign. "Who should decide? Me" said another.

"Oregon ought to be proud of having taken the first step," said one of the law's supporters, Rowland Cross, of Arlington, Va.

The appeal is a turf battle of sorts, not a constitutional showdown. Former Attorney General John Ashcroft, a favorite among the president's base of religious conservatives, decided in 2001 to pursue doctors who help people die.

Hastening someone's death is an improper use of medication and violates federal drug laws, Ashcroft reasoned, an opposite conclusion than the one reached by Janet Reno, the Clinton administration attorney general.

Oregon filed a lawsuit to defend its law, which took effect in 1997 and has been used by 208 people.

The Supreme Court will decide whether the federal government can trump the state.

"It could be close," said Neil Siegel, a law professor at Duke University and former Supreme Court clerk. "It is a wrenching issue. It's one of the most difficult decisions any family needs to make. There's a lot of discomfort with having the government at any level get involved."

Under Rehnquist's leadership the court had sought to embolden states to set their own rules. Roberts, who once served as a law clerk to Rehnquist and worked as a government lawyer, may be sympathetic to Bush administration arguments that the federal government needs ultimate authority to control drugs.

In this case, that would be at odds with the concept, popular among conservatives, of limiting federal interference.

Clement, the administration's Supreme Court lawyer, told justices in a filing that 49 states, centuries of tradition, and doctors groups agree that "assisted suicide is 'fundamentally incompatible' with a physician's role as healer."

The administration lost at the 9th U.S. Circuit Court of Appeals in San Francisco, which said Ashcroft's "unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide."

In Oregon, the first assisted-suicide law won narrow approval, just a 51 percent majority, in 1994. An effort to repeal it in 1997 was rejected by 60 percent of voters.

"There is a real human need" for control over one's life, said cancer patient Charlene Andrews of Salem, Ore. "We are terminal and we know when we have a few weeks left. We know when we're unconscious. We know when we're at the end."

The case before the Supreme Court is Gonzales v. Oregon, 04-623.

[etgryphon]

Well, they should be.

The argument is over the application of the Commerce Clause and intersate commerce of drugs that provide the lethal dose. The legislature has given the authority to the Executive Branch by way of the FDA to regulate drug licenses. The Administration\FDA policy is to revoke the license of doctors who use their FEDERAL LICENSE to obtain drugs that can give the lethal dose. It is a pretty complicated issue and not as clear cut as you would think the Medical Pot case would have been. They decided that one poorly as well.

This one is a little more tricky. Personally, I think it should be up to the states to decided, but with the current interpretation and authority of the Commerce Clause, I can see it going either way.

Oregon could set up its own "Hemlock Society" drug regulation for this specific purpose and bypass the feds all together. They produce their own drugs and have their own licensing statues it would make this a non-issue.

-Gryph

Don't confuse 'conservative' with 'religous wacko who thinks they have some sort of a right to dictate to others how to live their lives'. Many (if not the centrist majority) or Republicans are not members of the second group. We believe in the smallest government possible, a state's right to put together it's own laws and regulations (and the rights of individuals to choose their state of residence), and find the actions of the federal administration in this case abhorrent.

-Pete

[PoBoy321]

I was going to post a similar story, but I have this question, although it might be moot and not really apply here.

I understand the regulation to revoke a medical license if the doctor obtained drugs across state lines.

However, if that were not at issue, would the same right right to privacy provisions that applied to Roe v. Wade apply here?

[etgryphon]

[ QUOTE ]
I was going to post a similar story, but I have this question, although it might be moot and not really apply here.

I understand the regulation to revoke a medical license if the doctor obtained drugs across state lines.

However, if that were not at issue, would the same right right to privacy provisions that applied to Roe v. Wade apply here?

[/ QUOTE ]

Like I said in my earlier post, this is really an issue about Federal Drug licenses and the policy of the FDA. Whether we like it or not the Federal government has jurisdiction because of the Commerce Clause and interstate commerce of the drugs that provide the lethal dose to the patient. That maybe too tough to overturn because of precident. We can't really complain about how unfair this particular case is because we have made all the FEDERAL rulings on the Commerce clause up until this point. If you dismantle the definition and application of the Commerce clause in this case you are overturning the same foundational reasons that the Civil Rights Act in the 60s were ruled. Namely that business, hotels and restaurants can't discriminate. So it is a tough precedent to overturn. The Feds have jurisdiction because we gave it to them.

The right to privacy would not apply becuase you still have your license that comes from the Feds and bought drugs from interstate commerce. You have to be able to produce a drug within the state with its own licencing that is mutually exclusive to the Federal Drug licensing. Now if the Fed come after you because you have this OTHER license then you can use some of the reasoning in Roe v. Wade and other right to privacy cases.

This is a case about money. No licence, no practice, no money...

It will be a really interesting case to follow. But, don't be too upset if they rule against the doctors because there are other factor in play than this singular issue. If they do rule in favor of the doctors, they are going to have to write it in a way that doesn't undermine the Civil Rights rulings and the Medical Pot case unless that is their goal.

-Gryph

Most conservatives are for Federalism except when it doesn't agree with something they want. They are also for limited government and tight spending until they are in power and then they create large burocracies, build nations, and spend money on anything and everything they want. Most conservative judges are also against judicial activism until it's something they believe in and then they'll rule any way they want. It's the rare courageous conservative who really walks the walk.

How a conservative views this Oregon case is a good litmus test.

[Benman]

As a liberal, I'm happy to see the Supreme Court support the federal government and backtrack on its new federalism tendencies. I won't gloat that Scalia and company can be just as activist as all the liberal judges they condemn when it suits their moral purpose. Calling them hypocrites wouldn't suit any purpose, as far as I can see.

[Benman]

The California medical marijuana case already showed Scalia's true colors. He had to hide his head to rule like he did. But again, I won't gloat.

[slickpoppa]

I disagree that this is a case about the commerce clause. No one is arguing that the federal government would not have the power to regulate the use of these drugs for physician assisted suicide if Congess passed an explicit statue giving them that power. The real issue is one of statutory interpretation-that is, whether Congress actually intended to give the federal government the power to regulate this matter.

It is my opinion, which is also the opinion of the lower courts that have heard the case, that the Bush administration has adopted an overly broad interpretation of the statute in question so that it applies to physician assited suicide.

[natedogg]

The conservatives who are in power are basically only conservative on two issues: Abortion and gay marriage. Conversely, the liberals are pretty much only liberal on those same two issues......

natedogg