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False Federalism: In Gonzales v. Raich, itís the state thatís violating federalist principles.
National Review ^ | 6/8/05 | Wesley J. Smith

Posted on 06/08/2005 4:19:52 PM PDT by Crackingham

Does Oregon have the constitutional right to force the United States government to permit state doctors to assist patient suicides with federally controlled substances (narcotics)? Or is the federal government entitled under the Controlled Substances Act (CSA) to prevent these federally regulated drugs from being prescribed for lethal use regardless of state law? The Supreme Court will tell us soon in Gonzales v. Oregon, a case that will not only influence the course of the euthanasia and assisted-suicide debate, but will also profoundly impact the delicate balance of power between “states rights” and the overarching sovereignty of the federal government.

So far, court decisions have favored Oregon. Most recently, the Ninth Circuit Court of Appeals ruled that Oregon’s right to regulate medical practice within its borders prevents the federal government from punishing state doctors who prescribe federally controlled substances to end their terminally ill patients’ lives. Under this view, the federal government can punish doctors who prescribe lethal doses of controlled substances for use in assisted suicide in states where the act is illegal. But punishing Oregon doctors would violate the principle of federalism because assisted suicide has been explicitly made a proper medical practice under Oregon law.

I have argued previously in NRO that it is actually the other way around — that Oregon is violating the principle of federalism by seeking to prevent the federal government from pursuing its own legitimate public policy. Now, this view has been substantially supported in the just-announced Gonzales v. Raich, in which the Supreme Court ruled 6-3 that the federal government is entitled to enforce the CSA’s proscription of the use of marijuana — even though California permits the drug to be possessed legally for medicinal purposes; even though the marijuana in question was clearly being used by California residents for such medicinal purposes; and even though the marijuana was unquestionably home-grown and exclusively used for in-home consumption.

Most of the issues dealt with in Raich involved arcane interpretations of the interstate commerce clause, a matter now unlikely to be crucial in deciding Gonzales v. Oregon. But the majority opinion, written (surprisingly) by Justice John Paul Stevens, also invoked the Constitution’s Supremacy Clause as “unambiguously” providing “that if there is any conflict between federal and state law, federal law shall prevail.”

As applied in Raich, this means that the federal government is entitled to enforce federal law against medical marijuana users even in the face of contrary state laws, a ruling clearly applicable to the assisted-suicide controversy. And if the Court found this to be true for medical marijuana — which, after all, involves mere symptom relief — it hardly seems likely that it would reach a drastically different conclusion regarding the prescription of more potent controlled substances with the intent to kill.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events; Philosophy; US: California; US: Oregon
KEYWORDS: assistedsuicide; euthanasia; medicalmarijuana; raich; ruling; scotus

1 posted on 06/08/2005 4:19:52 PM PDT by Crackingham
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To: Crackingham

Touchy issue - but precendent usually trumps all. We shall see.


2 posted on 06/08/2005 4:23:11 PM PDT by EagleUSA
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To: EagleUSA
Judge Thomas's dissent is striking. He says that without any teeth in the 10th amendment we no longer have a government with limited and enumerated powers. Couldn't have said it better myself, nor would I try, not being a lawyer.
3 posted on 06/08/2005 4:25:55 PM PDT by Mylo
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To: Crackingham; EagleUSA

So the author feels that Californai and Oregon are violating Federalist principles by asserting their constitutional rights???

Total crap.


4 posted on 06/08/2005 4:26:27 PM PDT by Remember_Salamis (A nation which can prefer disgrace to danger is prepared for a master, and deserves one!)
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To: Remember_Salamis

So the author feels that Californai and Oregon are violating Federalist principles....
-----
Sadly I think the Tenth Amendment is dead. If my facts are right, Billy put the wooden stake in its heart when he killed what Reagan had accomplished for Federalism and States Rights.


5 posted on 06/08/2005 4:29:34 PM PDT by EagleUSA
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To: Crackingham

The Commerce Clause was originally intended to be extremely narrow, as a way of preventing trade wars among the States. Even the judicial tyrants who now wield it as a federal power trump card attest to this. As long as we continue to pretend that the courts can amend the Constitution at will, we will be a nation ruled by men and not by laws, and this whole debate is pointless. The United States is no longer a nation ruled by law. The only public contest is making the men who rule our men rather than their men.


6 posted on 06/08/2005 4:31:46 PM PDT by thoughtomator (The U.S. Constitution poses no serious threat to our form of government)
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To: Crackingham
"But punishing Oregon doctors would violate the principle of federalism because assisted suicide has been explicitly made a proper medical practice under Oregon law."

The federal government does NOT have a problem with Oregon's assisted suicide law -- that is a proper state function.

The federal government is simply saying not to use federally regulated drugs when assisting suicide.

7 posted on 06/08/2005 4:33:21 PM PDT by robertpaulsen
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To: EagleUSA
Sadly I think the Tenth Amendment is dead. If my facts are right, Billy put the wooden stake in its heart when he killed what Reagan had accomplished for Federalism and States Rights.

No, it was killed before that by FDR's handpicked majority in the Wickard case (cited by the majority as justifying the extension of federal powers to everything under the sun). Reagan ramped up the WoD even though there is no Constitutional justification for Congress having such police powers.

8 posted on 06/08/2005 4:52:34 PM PDT by Gunslingr3
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To: Remember_Salamis

I don't think he's "feeling" it; but rather, simply presenting case law.


9 posted on 06/08/2005 4:52:35 PM PDT by Alia
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To: Gunslingr3

No, it was killed before that by FDR's handpicked majority in the Wickard case.....
------
Yes, and I should have said "the final stake"...FDR, the grand father of American socialism, gave alot of things....akin to a case of VD.


10 posted on 06/08/2005 5:02:18 PM PDT by EagleUSA
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To: Mylo
Thomas is right, but I suspect the majority in this decision simply wasn't prepared to open a can of worms by siding with him. If his view had prevailed, the ultimate impact on our nation would have been monumental. If the state of Oregon were permitted to allow the use of marijuana for medicinal purposes, it would have been permitted to allow the use of marijuana (or any other substance) for any purpose whatsoever.

This is exactly what the Tenth Amendment is all about, and someday we may get back to that point. But I suspected a while ago that this case wasn't going to be the one that started the process.

11 posted on 06/08/2005 5:18:16 PM PDT by Alberta's Child (I ain't got a dime, but what I got is mine. I ain't rich, but lord I'm free.)
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To: EagleUSA
"Sadly I think the Tenth Amendment is dead."

It was killed by the 14th Amendment.

12 posted on 06/08/2005 5:22:59 PM PDT by tahiti
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To: robertpaulsen
I always find these notions of yours interesting. Do you believe in the concept of a "republic" and agree with its implementation in the US?

13 posted on 06/08/2005 5:23:51 PM PDT by William Terrell (Individuals can exist without government but government can't exist without individuals.)
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To: Crackingham
"Gonzales v. Raich, in which the Supreme Court ruled 6-3 that the federal government is entitled to enforce the CSA’s proscription of the use of marijuana"

"Proscription" means "to banish or outlaw."

In Griswold v. Connecticut, Justice Goldberg, in his consenting opinion, declared that ingesting a chemical, in this case a birth control pill, was a "fundamental" right, a right "retained by the people," protected by Amendment IX.

Alcohol, another chemical that free people can ingest, could only be banned by a constitutional amendment, not a federal law enforced by a congressional agency.

So, what has changed since then that allows the "powers of Congress," through the Controlled Substances Act (CSA), to overrule, usurp, diminish, "deny or disparage" our rights, "retained by the people," protected by the Constitution and affirmed by the Supreme Court in 1965?

14 posted on 06/08/2005 5:31:26 PM PDT by tahiti
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To: robertpaulsen
robertpaulsen said: "The federal government does NOT have a problem with Oregon's assisted suicide law -- that is a proper state function."

Similar to the argument that Kalifornians have a state-protected right to self-defense but no right to keep and bear arms. They are expected to protect themselves from armed criminals with harsh words and stern warnings. That is, except for the top state officials for whose protection tax-payers pay millions per year.

15 posted on 06/08/2005 5:48:37 PM PDT by William Tell
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To: William Terrell
"Do you believe in the concept of a "republic" and agree with its implementation in the US?"

With its initial implementation, yes. But the ratification of the 14th and 17th amendments paved the way to the destruction of that concept.

16 posted on 06/08/2005 8:21:17 PM PDT by robertpaulsen
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To: tahiti
"In Griswold v. Connecticut, Justice Goldberg, in his consenting opinion, declared that ingesting a chemical, in this case a birth control pill, was a "fundamental" right, a right "retained by the people," protected by Amendment IX."

Actually, he said, "In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, I add these words to emphasize the relevance of that Amendment to the Court's holding."

He said nothing about some right to ingest a chemical.

"Alcohol, another chemical that free people can ingest, could only be banned by a constitutional amendment, not a federal law enforced by a congressional agency."

An amendment was not necessary to ban alcohol. A federal statute would have sufficed.

"So, what has changed since then ..."

Nothing.

17 posted on 06/08/2005 8:31:11 PM PDT by robertpaulsen
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To: William Tell
That's the way the citizens of California want it. If they wanted to change the laws, or even the State Constitution, they have that power.

Do you have a problem with each state deciding how they want to live? Are you more comfortable with one set of laws that apply to every state?

Perhaps I should be asking you, "Do you believe in the concept of a "republic" and agree with its implementation in the US?"

18 posted on 06/08/2005 8:35:56 PM PDT by robertpaulsen
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To: tahiti

Bump to that.

As soon as the federal government was empowered to protect citizens' rights in each state, it was all over. States were subjugated entirely to federal interpretations of whatever rights they gave their citizens, even if those rights were more expansive than the federal ones.

But this ruling certainly sets things back. As the WSJ said,

"Raich would appear to end the Lopez line of reasoning, since the two decisions don't seem reconcilable. If, as Justice Antonin Scalia wrote in his majority concurrence, non-economic activities can be regulated so long as they are part of a "comprehensive scheme of regulation," there would appear to be no federal power the Commerce Clause couldn't theoretically justify.

And let no one be deluded that the democratic preference of America's largest state isn't being trampled here. We didn't support the California medical marijuana ballot initiative at issue in Raich. But a clear majority of Californians did. Just because an issue is "important" doesn't mean it should be a matter for federal law. Almost all homicide is regulated at the state level, and contentious issues like abortion rights are best handled not by judicial fiat but by democratic compromises in the 50 states. Who knows what further intrusions into the rights of local polities the Raich decision may one day be used to justify?"


19 posted on 06/08/2005 9:25:20 PM PDT by LibertarianInExile (<-- sick of faux-conservatives who want federal government intervention for 'conservative things.')
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To: robertpaulsen
With its initial implementation, yes. But the ratification of the 14th and 17th amendments paved the way to the destruction of that concept.

I mean, do you agree with the concept of a "republic" in that its distinguishing feature is a constitution that defines the limits of the government within bounds?

20 posted on 06/08/2005 9:47:31 PM PDT by William Terrell (Individuals can exist without government but government can't exist without individuals.)
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To: William Terrell
"I mean, do you agree with the concept of a "republic" in that its distinguishing feature is a constitution that defines the limits of the government within bounds?"

Of course. I believe the U.S. Constitution was written to define the limits of the federal (not state) government.

State constitutions define the limits of each state. That was the original intent of the Founding Fathers.

21 posted on 06/08/2005 9:57:56 PM PDT by robertpaulsen
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To: robertpaulsen
SUPREME COURT RULING: You can arrest those using marijuana for medical purposes ^
 Posted by robertpaulsen to KDD
On News/Activism ^ 06/08/2005 8:50:08 PM PDT · 1,075 of 1,083 ^


Let's be honest and open here. You're saying that the federal government has no business regulating any drug, recreational or prescription, and that it is up to each state to decide the issue.


_____________________________________




False Federalism: In Gonzales v. Raich, it's the state that's violating federalist principles. ^
 Posted by robertpaulsen to William Tell
On News/Activism ^ 06/08/2005 8:35:56 PM PDT · 18 of 19 ^

Do you have a problem with each state deciding how they want to live? Are you more comfortable with one set of laws that apply to every state?







Paulsen plays both ends.. Yet again
22 posted on 06/08/2005 10:04:41 PM PDT by P_A_I
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To: robertpaulsen
Then we agree that a constitution defines the operational bounds of a government. In order to do so, it defines the areas of sovereignty that administrators and elected officials may assume, by specifically naming powers, over the states and people, that they can wield.

You agree?

23 posted on 06/08/2005 10:24:25 PM PDT by William Terrell (Individuals can exist without government but government can't exist without individuals.)
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To: William Terrell; Everybody; robertpaulsen

William Terrell:
"I mean, do you agree with the concept of a "republic" in that its distinguishing feature is a constitution that defines the limits of the government within bounds?"


_____________________________________


Of course. I believe the U.S. Constitution was written to define the limits of the federal (not state) government.
State constitutions define the limits of each state.
That was the original intent of the Founding Fathers.

21 robertpaulsen






Paulsen misunderstands & ignores the words of the US Constitution once again.

It was the original intent of the Founding Fathers, clearly written, that all States have republican forms of government - wherein all judges & officials are pledged to support the US Constitution - notwithstanding any Thing in the Constitutions of any State to the Contrary.


24 posted on 06/08/2005 10:35:57 PM PDT by P_A_I
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To: P_A_I

Absent federal laws to the contrary, the states are free to set their own. I've been consistent in my statements.


25 posted on 06/08/2005 11:12:29 PM PDT by robertpaulsen
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To: William Terrell
"Then we agree that a constitution defines the operational bounds of a government. In order to do so, it defines the areas of sovereignty that administrators and elected officials may assume, by specifically naming powers, over the states and people, that they can wield."

Yes. And those constitutions also define the rights protected.

26 posted on 06/08/2005 11:14:58 PM PDT by robertpaulsen
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To: robertpaulsen
I believe the U.S. Constitution was written to define the limits of the federal (not state) government.
State constitutions define the limits of each state. That was the original intent of the Founding Fathers.

It was the original intent of the Founding Fathers, clearly written, that all States have republican forms of government - wherein all judges & officials are bound by oath to support the US Constitution - notwithstanding any Thing in the Constitutions of any State to the Contrary.

Absent federal laws to the contrary, the states are free to set their own.

You: " -- believe the U.S. Constitution was written to define the limits of the federal (not state) government."
And that only: "State constitutions define the limits of each state."

I've been consistent in my statements.

Your own words quoted above show your logical inconsistencies.
Can you admit it?

27 posted on 06/09/2005 12:17:33 AM PDT by P_A_I
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To: robertpaulsen
Yes. And those constitutions also define the rights protected.

No. The federal constitution defines the sovereign powers of that government, beyond which it is not to stray. In a positive list of grants to a government, all not listed are therefore not granted.

You agree?

28 posted on 06/09/2005 10:42:08 AM PDT by William Terrell (Individuals can exist without government but government can't exist without individuals.)
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To: Crackingham
Does Oregon have the constitutional right to force the United States government to permit state doctors to assist patient suicides with federally controlled substances (narcotics)?

force to permit. The author doesn't notice how absurd that notion is.

29 posted on 06/09/2005 10:58:30 AM PDT by Sandy
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To: Sandy; William Terrell; yall

The power to regulate v. the power to prohibit
Address:http://www.freerepublic.com/focus/f-news/1419654/posts


30 posted on 06/09/2005 11:23:11 AM PDT by P_A_I
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To: William Terrell
"The federal constitution defines the sovereign powers of that government, beyond which it is not to stray. In a positive list of grants to a government, all not listed are therefore not granted."

I agree.

31 posted on 06/09/2005 6:50:44 PM PDT by robertpaulsen
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To: Sandy
"force to permit. The author doesn't notice how absurd that notion is."

In a similar case, don't you remember how California forced the United States government to permit state doctors to "recommend" marijuana to their patients?

"California in particular has been at the legal forefront on the issue. A 1996 voter referendum, the Compassionate Use Act, allowed marijuana use by those who receive "the written or oral recommendation or approval of a physician."

"Federal health officials had told doctors who recommend or prescribe the substance could risk losing their medical license."

"A federal appeals court ruled against the government, saying in its ruling, "physicians must be able to speak frankly and openly to patients." The Justice Department then appealed to the Supreme Court."

"Supreme Court justices on Tuesday rejected the Bush administration's request to consider whether the federal government can punish doctors for recommending or even discussing the use of marijuana for their patients."

32 posted on 06/09/2005 6:59:36 PM PDT by robertpaulsen
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To: robertpaulsen
Since a republican government has its powers defined, and the reason those powers are defined is to limit the exercise of them over the areas of sovereignty held by the states and people, then a consitution that gives complete power of regulation and prohibition to the republican governemnt over every object, and activity related to that object, in the nation, one could say that it is no constitution, and does not limit the powers of that government. Therefore the government is not a republic.

Do you agree?

33 posted on 06/09/2005 8:29:27 PM PDT by William Terrell (Individuals can exist without government but government can't exist without individuals.)
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To: William Terrell
... then a consitution that gives complete power of regulation and prohibition to the republican governemnt over every object, and activity related to that object, in the nation, one could say that it is no constitution, and does not limit the powers of that government. Therefore the government is not a republic."

I agree. Though I'm not familiar with any constitution that does that.

34 posted on 06/09/2005 8:39:51 PM PDT by robertpaulsen
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To: robertpaulsen
I agree. Though I'm not familiar with any constitution that does that.

This one. By decision of the US Supreme Court.

35 posted on 06/09/2005 8:54:10 PM PDT by William Terrell (Individuals can exist without government but government can't exist without individuals.)
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To: William Terrell
"By decision of the US Supreme Court"

By the same Court that recently struck down two highly publicized cases whereby it was concluded that Congress did NOT have the power to regulate commerce?

36 posted on 06/10/2005 6:00:37 AM PDT by robertpaulsen
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To: robertpaulsen
By the same Court that recently struck down two highly publicized cases whereby it was concluded that Congress did NOT have the power to regulate commerce?

Oh, I see. The Supreme Court can determine what objects and activities related to those objects can be prohibited, even though, through their logic, any object can be prohibited, they can give a break to certain ones. That makes me feel better.

Since the Supreme Court is part of the republican government, too, what matters if they or Congress do the dirty deed?

37 posted on 06/10/2005 12:20:17 PM PDT by William Terrell (Individuals can exist without government but government can't exist without individuals.)
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To: William Terrell
"The Supreme Court can determine what objects and activities related to those objects can be prohibited"

Ever since Marbury v Madison, yes, the Supreme Court can determine if Congress exceeded its authority in Commerce Clause cases.

It is NOT true that the U.S. Constitution gives Congress "complete power of regulation and prohibition to the republican governemnt over every object, and activity related to that object, in the nation".

"Since the Supreme Court is part of the republican government, too, what matters if they or Congress do the dirty deed?"

I'm really not the one to talk to about these "conspiracy" theories.

38 posted on 06/10/2005 9:15:48 PM PDT by robertpaulsen
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