The Political Spectrum

Via the good folks at the Volokh Conspiracy, I recommend the reading of an essay titled The End of Federalism? by John C. Eastman at the Claremont Institute, a noted libertarian leaning think tank. His take on the prongs of the conservative collation in the 1980’s and early 1990’s, as well as how these prongs have shifted under the current Bush Administration, more or less articulate what I have noticed over the years.

While I agree with 90% of the piece, the one part I have to quibble with is the second to last paragraph, regarding the Oregon assisted suicide case, where Eastman writes that:

The Supreme Court heard oral arguments earlier this month in a case that would
prove a useful test of this thesis if Harriet Miers had already been sitting. At
issue in the Oregon assisted suicide case is whether the Attorney General's
re-working of a federal anti-drug law to pre-empt Oregon's assisted suicide
initiative was permissible. For strict constructionists and federalists, the
answer is a clear no. Article I of the Constitution assigns the lawmaking power
to Congress, not to the Attorney General, and there is nothing in the existing
statute regulating the interstate drug traffic that even hints at power over
wholly-intrastate drug use for purposes of physician assisted suicide. In other
words, the Attorney General's action violates the important (though admittedly
moribund) non-delegation doctrine, and exceeds the scope of federal power under
the interstate Commerce Clause as well.

This analysis is faulty for a couple of reasons, most importantly because it injects a constitutional argument where there isn’t one. The question presented by the Court in the case reads as follows:

Whether the Attorney General has permissibly construed the Controlled Substances
Act, 21 U.S.C. 801 et seq., and its implementing regulations to
prohibit the distribution of federally controlled substances for the purpose of
facilitating an individual’s suicide, regardless of any state law purporting to
authorize such distribution.

Note the absence of any mention of the Constitution or specifically the Commerce Clause. This is not to say that there are not potential Commerce Clause and federalism issues out there with respect to this issue, but merely that the Court didn’t take them, and from most of the accounts that I heard about the oral argument, wasn’t particularly interested in them. If one looks at this case from a statutory construction point-of-view as the Court seems to indicate it will, then it becomes much less obvious that the federal government overstepped its bounds. Note further that, to my knowledge, there has been few, if any, SCOUTS decisions overturning federal statutes on the basis of a violation of the non-delegation doctrine. It simply doesn’t happen often, if at all. Through a Commerce Clause lens I can see how Mr. Eastman got to where he was going, though he nicely avoids the complication presented by last terms Gonzales v. Raich decision, but even that might not pose much of an impediment.

Despite my nitpicking, this is an interesting little article that does something I for one greatly appreciate. It admits that the Court does things other than decide social “hot-button” issues, and points to cases and controversies that people ought to be concerned about when evaluating the Miers nomination.