October 06, 2005
Roberts In the Thick
Is he a non-principled constructionist? He appears, from the questioning in the right-to-die argument, ready to support the federal law prohibiting doctor assisted suicide, but that stance – to me- seems to conflict with strict constructionist/ conservative jurisprudence.
I’m guessing that the argument from the Federal Government is the commerce clause allows them to regulate drugs and their usage, and are relying on the recent medical marijuana decision. Here’s the difference, though. Marijuana is drug which is not legal for any purpose, according to the federal government. In this case, the drugs in question are legal for doctors to prescribe, and doctors usually enjoy a wide latitude in when the prescribe them. This case would say to doctors, we’re telling you that you can not prescribe these drugs for this purpose.
It seems to me that this would not be covered by the commerce clause, which is what the rationale for the medical marijuana decision, especially considering the courts recently narrow view of commerce clause powers. It also seems the government is trying to use the commerce clause to get around the 11th amendment restrictions
Now, I’m supportive of a broad reading of the commerce clause, and recognize that this type of issue is part of the trade off, but I find Robert’s position (if, indeed, that is his position) curious.
Update: Rick has the same thoughts, though less Roberts centric, and he tosses in an ACLU kudos to boot.
Rick DeMent said (at October 6, 2005 11:52 AM):
One thought I had was that the least painful way in the world to die is to simply open up a vain and allow the blood to drain, the victim falls asleep and then ...
You don't really need the drugs, but that whole argument is a painful dodge to get around the "states-rights" question.
Even funnier is the same people who say that the commerce clause, as currently interpreted, is an abomination now seem to be worried that this case will undermine it’s use in allowing the federal government to regulate drugs at all.
What a hoot!!!!
Henry said (at October 6, 2005 12:07 PM):
I view this issue similarly to how I view abortion: 'Outlawing' it won't prevent it from happening, just force it underground and make it more dangerous.
The 'judicial restraint' view is especially interesting since Rehnquist was really the force behind the emergence of the restrictions on the commerce clause, using it to defeat elements of the Brady Bill, as well as other congressional acts. Of course, this was back when the democrats were in charge of the Legislative branch. Not that that mattered.