Wednesday, January 18, 2006

Further thoughts on Gonzales v. Oregon

It's amazing that a case that really is about a fairly arcane statutory matter could carry so much import. As many commentators have observed, this is hardly a groundbreaking decision, and it's quite possible if not likely that any action Congress takes to clarify the CSA so as to deal with drugs related to doctor assisted suicide would pass constitutional muster. But this case elicits a few observations about the Court and the personalities involved in the case.

Read more:Though many people are quite astute to the fact that Justices Thomas and Scalia have different judicial philosophies, the general impression is that they are basically one in the same. At least that is the perception among the general public, and even implied by commentators who suggest that any person Bush picks should be in the mold of Thomas and Scalia. And I must confess that their differences are much more substantial than I previously suspected.

Scalia is far less libertarian in his approach to federalism issues than Thomas. Or, more aptly, Scalia is much more likely than Thomas to support the federal government in these sort of federal versus state conflicts. In this way he is almost the opposite of Sandra Day O'Connor, and I will explain why shortly.

Thomas, of course, is much more protective of states'ss rights and, concurrently, much less partial to upholding precedent. In fact, his dissent in the Oregon case is one of the most remarkable dissents I have ever read. While Scalia is known for his caustic wit, Thomas uses the occasion to verbally smackdown the Court majority. It seems he essentially endorses the outcome of the case, but he refuses to sign on to the majority opinion. Rather than write a separate concurrence he chooses instead to completely distance himself from the majority. In effect, Justice Thomas is not dissenting from the opinion or the holding, but he is dissenting wholly from the Court itself. This is a dissent designed specifically to highlight the complete inconsistency in the thinking of at least five members of the Court. In short, he cast a protest vote against the turn this Court has taken, and has basically washed his hands of their reasoning. He is far less conservative tempramentally than his colleague on the right side of the Supreme Court.

As I said, there is another element at play here. Critics have attacked the supposed double standard about states' rights. First, as already mentioned, Scalia is less concerned with upholding the states against the powers of the federal government than are his other federalist-minded jurists. Second, the Baseball Crank explains more fully why this isn't a federalism case per se:
Even Justices who think that we may properly revisit long-settled Constitutional doctrines are usually hesitant to do so without any party to the case asking them to. All Scalia was doing here was assuming that Congress legitimately intended to legislate for this purpose, given 100+ years of history saying it could.

More to the point, there is a big difference between saying that Congress (or another branch of government) can go beyond its enumerated powers, and saying that Congress can act within those powers for unenumerated purposes. Here, we have the latter - there is no question that the drugs involved in this case traveled in interstate commerce, and even Scalia is unlikely to sign on, at this late date, to a sufficiently cramped view of the commerce power to find that Congress can't regulate the use of goods shipped in interstate commerce; that battle was lost 70+ years ago. What Schraub is implying here is that Scalia, for consistency's sake, should have concluded that even an act within Congress' explicit powers is impermissible if the intended purpose of that act invades traditional state authority. But that is a much more radical states' rights doctrine than anybody on the current Court embraces, and it doesn't square with the plain language of the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment speaks of delegated powers, not the purposes and intentions to which those powers are put. Indeed, it would be a most unconservative approach (and one specifically dissented from by Scalia in Romer v. Evans) to give constitutional dimension to the intended purposes of an act rather than look at what powers are enumerated and presume that acts taken under those powers are legitimate (as was done in South Dakota v. Dole, an opinion Scalia joined). Schraub's analogy (taken from here) to United States v. Morrison, the Violence Against Women Act case, is misplaced; the Court in that case found an absence of proper basis for the commerce power in the first instance - i.e., an insufficient nexus between interstate commerce and domestic violence - rather than creating an affirmative rule repealing the commerce power, even when otherwise applicable, based upon the intended use of that power.

The lesson, as usual, is that people who charge conservatives with hypocrisy as often as not end up demonstrating that they don't understand conservative principles.
To follow up on that, I have to clarify two different aspects of federalism.

The first aspect is actually less about federalism than about states' rights. I am referring to those sets of cases which do not involve the federal government, but instead are cases involving a citizen or group of citizens suing a state, ie. Roe, Lawrence, etc. In these cases the federal government has taken no action, but instead the issue is simply whether the states have violated some aspect of the Constitution. It is in these cases where I posit the states are owned much more deference. The Constitution is principally a document enumerating the various powers of the federal government, and in cases where the states have acted absent a federal action, the tenth amendment ought to be respected if said state action does not contravene the plain meaning of the Constitution. As one who does not buy into the incorporation bunk, the petitioners against the state have a high burden to prove that the states have clearly violated the federal charter. (Even allowing for incorporation - which I do not - there is still a high burden).

Now, of course there might be circumstances where the states do in fact violate the federal constitution. To cite an extreme example, if a state allowed a 28-year old to be elected to the Senate, there would be no reasonable justification for the Courts to sanction the state action. I use this axample merely to demonstrate that states' rights are not absolute. There are going to be harder examples surely, and there have been. But the general presumotion should be for the state action to be upheld.

But there is a second strand of states' rights/federalism issues. These involve cases where there is a federal intrusion upon the states, and this is where the Oregon case falls. In a federal versus state battle, the Justices must determine whether the feds have acted in a manner consistent with its constitutional authority.

While the ideological pull for conservatives is still to defer to the states, again this is not absolute. After all, the federal government does have certain powers. If you're an individual who thinks the feds can never interfere in state matters, congratulations, you're anti-Federalist, and your side lost nearly 220 years ago when the US Constitution was ratified. What conservatives sometimes fail to appreciate is that the Constitution enhanced the powers of the federal/national government from what came before - the Articles of Confederation. Of course it did so while placing strict limits on those powers.

As a matter of policy, I think the federal government ought to leave the states largely unmolested. I think William Watkins absolutely nailed it with this piece, and though I personally think assisted suicide should be outlawed, the feds ought to leave the states alone to decide the matter. But that's a policy matter that does not address the constitutional propriety of federal interference, and truth be told neither does this particular case - at least not substantively. Though I think Scalia plays a little fast and loose, his interpretation of the AG's powers regarding CSA seems ultimately more convincing than Kennedy. But I'll have more to say on Kennedy in a minute. Again, I would refer you to the Baseball Crank post mentioned above for a much more articulate explanation of the legal matter.

I had alluded to Scalia's differences with O'Connor. The reason I find O'Connor fascinating is that I do see a consistency in her jurisprudence. In matters of federal vs. state conflicts (South Dakota v. Dole, Raich, Lopez), she decided almost constantly with the states. But in matters where the states acted without federal interference (Casey, Lawrence) she tended to rule against the states. Basically, she always ruled for the smaller entity. Scalia, meanwhile, has a somewhat opposite pattern, though not absolutely so.

Ultimately, when it comes to federalism issues, we tend to think too abstractly, ie we insist that the state must always prevail. While my personal symapthies normally reside with the more local institution, sometimes the feds should win. I'll paraphrase Roberts here a bit, but when the Constitution says the big boys should win, then the big boys win.

Oh, and one last note on Kennedy: Can someone else write these opinions? Seriously, like, any other left-leaning member of the Court would do. Maybe Breyer or Sutter could get the next big assignment, because then at least the majority opinion might be worth the paper it's written on, or at the very least it might, you know, make sense.

I love the Gipper, but man did he f*** up that pick.


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