OR Death with Dignity Act (and Federalism) Upheld

Various: Dahlia Lithwick discusses Justice O'Connor, and I get another chance to promote Laura Flanders book (and make a point!) here. My pro-homosexual marriage remarks here are misunderstood. Apparently, the person is not too familiar with my opinion on the issue, though the final sentence as well as the other post in the thread is pretty suggestive! Or is it just me? Sometimes, you talk pass someone without even knowing it. NYT had a good article on blogging here. Al Gore aka "No Better Than Bush" had some strong words to say [see also] against the President, didn't he? [Update: Slight edits; content same.]

A 1994 voter initiative, later reaffirmed, made Oregon the first state in the union to expressly allow physician assisted suicide in certain cases. Sen. Ashcroft asked the Reno Justice Department to challenge the law under the Controlled Substance Act, but she refused, arguing state discretion and the power of federalism in matters of medicine. Suggesting the power of the executive in an administrative state that gives it wide discretion, the Ashcroft Justice Department did challenge the law. Thus, a federal law that arguably is problematic even when used to deal with its clearly intended purpose - illegal drug use - was used to federalize medicine policy.

In a 2-1 opinion written by one of the conservative judges of the Ninth Circuit, Oregon v. Ashcroft, the Oregon law was upheld, largely on federalist grounds. The Court held that the attorney general misinterpreted the Controlled Substance Act, but in particular, the attempt to interfere with democratically formulated policy of state concern was problematic. As it noted: "The principle that state governments bear the primary responsibility for evaluating physician assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government, are the primary regulators of professional medical conduct."

The federal courts are an indirectly democratic institution. The judges are appointed and confirmed by those we elect, so in some sense reflect the political mentality of the electorate. This is clearly seen by the conservative (in various criminal or affirmative action cases, for instance) nature of many rules. And, the reason why courts now have more judges with such sentiments is that the electorate had them to such a degree that they elected presidents and senators with such views. This is why who we elect greatly influences not only foreign policy, tax policy, but also judicial policy.

To view the courts as purely conservative, as some commentators in somewhat excited tones suggest, is incomplete, however. Cases like this one, as well as those supporting the rights of homosexuals and a central core of abortion rights suggest a libertarian edge as well. This includes a fear of centralized power, which is an important underlining principle to the federalism cases. Such cases might try to stretch the words of the Constitution too much or belie a certain inconsistency, but critics of the current administration should be sympathetic to their sentiments. This case is a case in point. That inconsistency, however, causes cynicism:

Vikram Amar, a professor at Hastings College of the Law in San Francisco, said it is sometimes hard to divine the Justice Department's guiding philosophy in which state laws it decides to challenge.

"They haven't explained very well the distinctions they make," he said, "and that leaves them open to the charge of hypocrisy." [cite]

The courts are one check to such selectivity. The court here did not make policy, though it tried a few years ago to constitutionalize the right here protected by statute. In fact, it suggested a clear statement by Congress probably would justify Attorney General Ashcroft's actions. Putting this aside, the use of federalism (along with any number of other constitutional values) as a principle to restrain potentially open-ended legislation is a sound judicial practice.

It also promotes the state by state experimentalization that is best used to handle highly disputed matters of public policy that include various possible solutions. On the whole, it promotes freedom, which is best protected when the power of the state to limit it is carefully regulated. Thus, even if you are greatly opposed to this practice on policy or moral grounds, the decision itself might still be considered a sound one.