18 Jan 2006

Never Yet Melted Author Wrong!

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When we commented yesterday negatively on the Supreme Court decision in Gonzales, et. al. v. Oregon, we must confess that we had not yet gotten around to reading the actual decision. Nor were we familiar with the specifics of the Oregon law. Its title, the Oregon Death With Dignity Act (ODWDA), had precisely the ring of liberal double-speak to it, and we had leapt (understandably, we would argue) to the conclusion that the act basically encompassed oldsters going to the doctor’s office to be treated in the manner of the veterinarian putting to sleep the family cat. The reality was clearly quite different.

(The Supreme Court decision states:)

The Oregon Death With Dignity Act (ODWDA) exempts from civil or criminal liability state-licensed physicians who, in compliance with ODWDA’s specific safeguards, dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient.

Since our own position is really that any rational adult ought to be able to buy, and use, any medication or consciousness-altering item he desires without a prescription, it is clear that we failed to recognize initially the curious occurrence of the court’s liberal majority arriving at a perfectly correct decision.

Justice Scalia seems to have suffered from the same knee-jerk reaction we did initially, which was joined by Justices Roberts and Thomas. But Clarence Thomas additionally wrote a separate dissent, commenting sarcastically:

I agree with limiting the applications of the CSA [Controlled Substances Act] 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.’ ? 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.

In other words, Thomas still thinks the Constitution ought to preclude such Federal intrusions, but the since the Court already decided otherwise in Raich, what can he do but dissent from the tortured reasoning used to achieve a different result this time?


I was just telling my wife: I can remember being wrong once before. I think it was in 1954…


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