The legal issues in the case turn (ostensibly) on relatively obscure matters of statutory interpretation. The far more interesting aspect of this case is its factual background -- the way in which this whole dispute arose as a result of the Bush's Administration's attempts in the weeks after 9/11 to overturn Oregon's assisted suicide law. How this whole thing came about presents some interesting and truly disturbing insight into what the Bush Administration is really all about.
In 1994, Oregon citizens approved legislation allowing doctors to assist terminally ill patients (i.e, patients who are reasonably certain to die within 6 months) who want to bring about a peaceful and painless death. In 1997, Oregon voters rejected a referendum to repeal the law. The democratic process in Oregon twice resulted in a judgment by its citizens that terminally ill individuals should be permitted to have the assistance of their physician in choosing a dignified and peaceful death.
Unhappy with the outcome of democracy in Oregon, certain Republicans in Congress (led by Orrin Hatch and Henry Hyde) demanded that the Justice Department (through the DEA) revoke the federal registration of any doctors in Oregon who provide the death-inducing medication to the terminally ill patients who request it under the Oregon law. As the Supreme Court explained, the Justice Department refused to do so when Attorney General Janet Reno wrote to Hatch and Hyde, concluding:
that the DEA could not take the proposed action because the CSA did not authorize it to "displace the states as the primary regulators of the medical profession, or to override a state's determination as to what constitutes legitimate medical practice."
Unhappy with the notion that Oregon could make its own decisions about assisted-suicide, these same Republicans then introduced legislation in Congress in order to give the Attorney General authorization to revoke the federal licenses of any Oregon doctors who assisted in suicide under this law. These Republicans wanted to use federal law to override Oregon law despite the fact they have long claimed to be believers in "states’ rights" -- i.e., that the Federal Government’s power should be restricted and individual states should be able to make their own decisions in areas traditionally reserved to the states, which indisputably includes regulation of the doctor-patient relationship.
In any event, the Republican sponsors could not get their legislation enacted. Congress refused to provide the Attorney General with authority to revoke the registration of Oregon doctors who assist in suicide.
So, Republican opponents of Oregon's assisted suicide law tried and failed: (a) to have Oregon’s law repealed by referendum; (b) to induce the Justice Department to revoke the licenses of Oregon’s doctors who assisted in suicide; and (c) to enact legislation in Congress giving the Justice Department the right to revoke the registration of doctors assisting in suicide. Again and again, these crusaders were rebuffed by the democratic and legal processes.
But once the Bush Administration took power, democratic processes in this area ceased to matter. John Ashcroft was hell-bent on putting an end to physician-assisted suicide in Oregon because he personally believes it to be morally wrong, and he wasn’t going to let any legal barriers stand in his way of imposing his moral framework on Oregon.
When Ashcroft took office, the State of Oregon was concerned -- due to Ashcroft’s well-known opposition to assisted-suicide -- that he was going to take steps to impede Oregon’s statute. As a result, Oregon’s Attorney General wrote a letter to Ashcroft asking for a meeting to discuss his intentions, in reply to which Ashcroft had a subordinate send a letter that said this:
"I am aware of no pending legislation in Congress that would prompt a review of the Department's interpretation of the CSA as it relates to physician-assisted suicide. Should such a review be commenced in the future, we would be happy to include your views in that review."
That letter was sent on April 17, 2001. Less than seven months later, on November 9, 2001, Ashcroft caused the DoJ to blatantly breach its promise to Oregon and – while the whole country was focused on the September 11 and anthrax attacks – Ashcroft issued an "interpretation" stating that it was illegal under the CSA for Oregon doctors to assist in suicide. As the Supreme Court described it:
On November 9, 2001, without consulting Oregon or apparently anyone outside his Department, the Attorney General issued an Interpretive Rule announcing his intent to restrict the use of controlled substances for physician-assisted suicide.
Incorporating the legal analysis of a memorandum he had solicited from his Office of Legal Counsel, the Attorney General ruled "assisting suicide is not a 'legitimate medical purpose' within the meaning of 21 CFR 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the Controlled Substances Act.
It cannot be overstated how reprehensible this is. Ever since September 11, the Bush Administration has insisted again and again that the threat of terrorism is an unprecedented existential threat. We are at "war," and must devote our full attention to capturing terrorists and winning the war, even if it means severely restricting our constitutional liberties and taking other extreme measures to fight this war.
And yet, less than two months after September 11, what was the Justice Department doing? What was the Attorney General's attention devoted to? Working in secret, and in violation of its promises to the State of Oregon, to figure out how it could trample on the democratic process and on principles of states rights which conservatives claim to believe in, all in order to block terminally ill people from choosing how to die because John Ashcroft and James Dobson think that it’s immoral to exercise that choice. That’s what Ashcroft’s DoJ was doing in the weeks after September 11.
For the last four years, this Administration has cynically exploited the September 11 attacks and the supposedly overarching terrorist threat to work unnoticed, wielding the ever-expanding powers of the Federal Government in order to implement a whole slew of moralizing, intrusive measures. In this time of alleged "war," the Administration has devoted substantial resources of the Federal Government -- including the DoJ, the FBI and other law enforcement agencies -- to measures as pressing as waging the war against adult pornography, the war against the morning after pill, and the vicious war against adult gambling.
But when it comes to anti-democratic impulses and rank hypocrisy, none of those things match the Administration’s behavior with regard to Oregon’s assisted suicide law. These crusaders for the democratic process, majority will, and states’ rights simply lied to the State of Oregon, trampled on the will of a majority of Oregon’s citizens, and used the power of the Federal Government to override laws regulating medical treatment, an area which has always been reserved for the states.
And this was all done inside the Justice Department, engineered by John Ashcroft, literally in the weeks (before and) after September 11. This was all happening while the country was focused on September 11, the anthrax attacks which the DoJ never solved, enactment of the Patriot Act, and scores of other newly pressing concerns brought about by these terrorist attacks. But in the weeks before September 11 and in the weeks immediately after, the priority of the Attorney General was figuring out how to override the will of Oregon voters in order to prevent terminally ill patients from choosing how to die.
The Administration has skillfully used fear-mongering over terrorism to obscure the extent to which intrusive religious conservatism is shaping and molding almost every aspect of U.S. domestic policy. Agencies and sub-agencies which receive relatively little attention but which have great influence on domestic policies have, in many cases, been turned over to religious extremists, and the lack of light being shined on these bureaucratic crevices in Washington means that they are running wild, without any real restraint or opposition.
Americans are going to wake up one day and look at the results of these largely covert activities and find that there is a whole panoply of intrusive, religion-driven restrictions embedded into federal law in almost every sector. Not even the September 11 attacks slowed these efforts. To the contrary, as these assisted suicide manueverings demonstrate, the terrorists attacks were used, and continue to be used, to enable the Administration to pursue measures which it knows the country would not accept if it were paying attention to them.
The important point here is that the one stick the GOP uses to beat the Dems over and over is how they are protecting the country. But this shows how false that is!! Where is OBL? Where are the antrhax perpetrators? While all of this is being neglected, the AG is trying to make sure that old people die in pain. That's what they're worried about, implanting their religious agenda at the expense of our security!
ReplyDeleteOh, But they argue that they CAN walk and Chew Gum at the same time.
ReplyDeleteTis nothing to them to *multi-task* with promoting their religious-driven agenda WHILE purposely ignoring implementing the many actual security measures which could realistically protect our country AND subverting all Constititional protections into the bargain.
What a Crew at 1600 this IS.
Bleh!!!
Further consider the hypocrisy of the number of people who defended FEMA's lackluster response to Katrina on the grounds that Bush sending it in would have violated state's rights.
ReplyDeleteI also find it odd that the three dissenting voices in a conservative decision were 3 conservative justices.
Also in the year after 911, and shortly after the Anthrax attacks, the DOJ (through the DEA) sent dozens of armed federal agents into California to rip up medial marijuana plants and handcuff elderly cancer patients in wheelchairs in their attempts to stop California citizens from exercising their rights under state law.
ReplyDeleteForgotten was Bush's campaign statement that when it came to medical marijuana "I believe each state can choose that decision as they so choose."
Lots of assertions there without a lot of back-up, Glenn. You say that Ashcroft "promised" Oregon that he wouldn't do anything without consulting them first. Where is the proof of THAT? And why should he have to "consult" with Oregon before changing the interpretation. I doubt Oregon consulted with Ashcroft before passing their law.
ReplyDeleteVery insightful Glenn.
ReplyDeleteSometime I would like to hear your thoughts on the anthrax case:
what happened, who the real suspects are and why the case "can't" or won't be solved.
I can't figure out why we don't ever hear about this even though at the time this was a prime mover in the country's mass hysteria and congress giving the White House basically whatever they wanted.
I figure that if this case was peeled back a whole lot of other things might just come along with it.
Correct! The duplicity of a group of "conservatives" who say they rally around the flag of "strict constructionism" and "states' rights" is absolutely breathtaking.
ReplyDeleteFor a poster child of this new hypocrisy, there's none better than Antonin Scalia.
While everything Glenn writes in criticism of Ashcroft and the Bush Admin in this case is entirely justified, I want to address what superficially appears to be the perplexing question of one of the dissenting conservatives in the case, Clarence Thomas, whose opinion is here.
ReplyDeleteThomas begins his dissent declaring:
When Angel Raich and Diane Monson challenged the application of the Controlled Substances Act (CSA), 21 U. S. C. §801 et seq., to their purely intrastate possession of marijuana for medical use as authorized under California law, a majority of this Court (a mere seven months ago) determined that the CSA effectively invalidated California's law because "the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner." Gonzales v. Raich, 545 U. S. ___, ___ (2005) (slip op., at 24) (emphasis added)
Thomas, to his enormous credit, and true to principles of federalism, strongly dissented in Raich. He is quite accurate that the more liberal members of the Court who told the People of California that they may not vote to permit sick people to use cannabis -- because they are foreclosed by the Big Brother federal govt per the CSA -- are engaging in the most grotesque intellectual dishonesty to reach yesterday's ruling that the People of Oregon may take drugs to kill themselves when they are terminally ill. Thomas is throwing their Raich holding in their faces, and saying: "You hate federalism and think the federal govt should be involved in regulating the states in the area of drugs? Fine. I dissented, and now I'm applying what you have wrought."
Truly, the "liberals" who voted one way in Raich, and another in the Oregon case, were simply result-driven. They lacked sympathy for medical marijuana, but they approve of physician-assisted suicide. And they endorse that the freakin Commerce Clause entitles Congress to involve itself in regulating what any of us take into our own bodies, in whatever state in which we reside. Except in Oregon if we are dying, because they approve of that.
Hypatia:
ReplyDeleteThomas is throwing their Raich holding in their faces, and saying: "You hate federalism and think the federal govt should be involved in regulating the states in the area of drugs? Fine. I dissented, and now I'm applying what you have wrought."
Couldn't he have said that in a concurring opinion?
Hypatia, there's another potential way to explain the liberals who voted against Raich and for Oregon that has nothing to do with marijuana or suicide. They may have wanted strong Federal government when it came to Congressional laws, but not unbridled executive branch power to bend those laws to a particular view.
ReplyDeleteIn Raich, Congress' Controlled Substances Act clearly prohibits marijuana. In Oregon, the CSA doesn't specifically speak to assisted suicide -- that was an action of the executive branch (Ashcroft).
mr. ziffel: He would have, I would guess, if his vote had mattered. Seven-two as opposed to 6-3 just didn't make a difference.
ReplyDeleteSo he chose instead to apply the holding of Raich (which he found abominable)and to rebuke those who formed a majority in that case. His whole "dissent" is a remonstrance about Raich and hypocrisy.
pete guither: The CSA applies equally in both cases. And in both cases it was the federal govt/DoJ insisting on trumping state law via the CSA.
ReplyDeleteI can't state any more plainly than Thomas did in his Oregon case dissent why this is so. Please read it.
Excellent post, Glenn. Until I read this, I had forgetten how furious I was back in 2001 when Ashcroft issued his stealth order in the chaotic aftermath of 9/11 when no one was paying attention. I grew up in Oregon and voted in favor of he measure Ashcroft tried to scuttle via executive fiat, so I took it personally. It was just such a cowardly and undemocratic move.
ReplyDeleteI'm with Hyapatia on the California. The regulating interstate commerce deal seemed like a stretch, to me.
ReplyDeleteOkay, Raich was definitely wrongly decided. So Justice Thomas flip-flopped his vote on Oregon to remonstrate with certain members of the majority. I'm glad that he cheapened his vote in order to make fun of theirs. He could very easily have concurred, while writing a separate opinion berating his fellows. He could also have spent time just as productively by asking his Federalist Society colleague, Mr. Scalia, why he voted both times to uphold overarching federal power trumping states' rights. This case highlights the whole myth of the purely disinterested judge. Of course their personal beliefs and opinions affect their decisions, especially on the Supreme Court, where they get the decisions that are by definition knotty and ambiguous. Many in the majority likely had a desired outcome, and sought to justify it. But the same is certainly true of Mr. Scalia, both here and in Raich. I'm not saying this is grounds for abolishing the "unelected priesthood" of the federal judiciary in contravention of Madison, Hamilton, etc.; I'm just saying it's a fact of life. Rutledge was denied the Chief Justiceship because of partisan opinions over the Jay treaty, even though the Washington Post wrote a glowing editoral about his qualifications.
ReplyDelete--mds
He could also have spent time just as productively by asking his Federalist Society colleague, Mr. Scalia, why he voted both times to uphold overarching federal power trumping states' rights. This case highlights the whole myth of the purely disinterested judge.
ReplyDeleteThomas's rebuke applies equally to Scalia, whose votes in both cases are indefensible. And grossly dishonest. Altho, they are consistent within his over-arching hypocrisy: Scalia likes federal drug laws, doesn't think sick people should be able to use marijuana, and he opposes asssited suicide. The more liberal members of the Raich Court do like assisted suicide, hence their votes in the Oregon case.
Thomas was writing as if the Raich case and principles of stare decisis applied, which it would seem they should given that the case was only 7 months old. His dissent was wholly honest.
And so much for all the liberal blathering that Clarence Thomas is Antonin Scalia's lapdog. He isn't.
mds - I agree with Hypatia. The only one who looks at all consistent here is Thomas. I don't think it much matters whether he concurred or dissented. One could argue - and he insinuates this in his opinion - that he is operating on the assumption that Raich is now the law. In fact, he makes clear that he disagrees with the Raich rationale but says that that's "water over the dam" (did he mix his metaphor there?), which I took to mean that it can't be challenged any more since it was just decided. Now that it's law, he is telling the Raich majority what the outcome here has to be, and he is unquestionably right.
ReplyDeletePete is also right that Raich and this case are technically different - this case really did turn on statutory construction and whether the DoJ was interpreting it correctly, not on the Commerce Clause. But there is no way to reconcile the two cases, because the majority here did emphasize the states' right to regulate this area.
The one thing I like about Alito is his restrictive Commerce Clause views. We really are very far afield from the Founders' promise of a very limited federal government and the right of the states to decide how they each will live. Although a bloated Commerce Clause has been good so far (mostly) for liberals, there's no reason that will always be the case. Far better, I believe, to have fealty to those first constitutional principles.
Howard Dean actually talked about this a lot - how different states have different situations and states' rights should be expanded to allow, for instance, each to have different laws on gun control. Raich was a travesty and Thomas is right that there is no way to reconcile it with this case.
(I started writing that last comment before Hypatia posted the comment above, hence the overlap).
ReplyDeleteHypatia, I have read Thomas' dissent and understand it, and I know that both cases are CSA cases. I didn't say I agreed with the liberal judges (I don't) -- I simply indicated that their behavior could be explained (not justified) by their view of Raich=good Congressional Power versus Oregon=Executive Branch overreaching.
ReplyDeleteIf you read through the opinion in Oregon, you see that it's a constant repetition of the words "Attorney General" (97 times) and "Interpretive Rule" (34 times) That's all they talk about. There's a constant slam against Ashcroft exceeding his "authority."
A crucial aspect of the Oregon case is the vote of Roberts. The first chance he had, he voted with the extreme right wing of the Court to uphold a preposterous, strained interpretation of federal law by the cabinet officer closest to the president.
ReplyDeleteGlenn amply demonstrates the outrageousness of the Bush DOJ position. It was nothing more than a gross distortion of federal law by a socially reactionary executive to crush a state law viewed as socially progressive. "Law" had nothing to do with this president's decision to invalidate the decision of Oregon voters.
This was an easy case, all levels of the federal courts agreed with Oregon's position. But not Roberts. Instead he has quickly demonstrated that he will side with the executive in cases involving gross overeaching by the president, no matter how weak the arguments of the executive.
With Roberts and Alito joining the existing presidential power wing, the Court will no longer be a check on executive misrule and abuse. At least not misrule and abuse by a Republican executive, as I think it likely these justices will reach different results for different political parties. See Bush v. Gore
Although a bloated Commerce Clause has been good so far (mostly) for liberals, there's no reason that will always be the case. Far better, I believe, to have fealty to those first constitutional principles.
ReplyDeleteAbsolutely. And this raises the issue that both left and right can and have made common cause to control people. Our draconian drug laws came to us through an unholy alliance of "progressive" do-gooders and religious moralists. Not too long ago, Charles Rangel was arguing in favor of strong drug laws against William Buckley (!), claiming that loosening prohibition would lead to black genocide. (This all happened on The McNeil-Lehrer News Hour in the 90s.)I guess Rangel prefers to see 1 in 4 black men in prison, largely for non-violent drug crimes.
Somewhat the same phenomenon has occurred with certain strands of feminism forming coalitions with the religious right to ban adult pornography.
The only bulwark against federal intrusions into very personal decisions, and the right of the people of the several states to determine how they wish to handle such matters, is the Constitution. Once jurists --left, right or anything beyond or inbetween -- abandon it for their own pet causes, that bulwark erodes.
This was an easy case, all levels of the federal courts agreed with Oregon's position. But not Roberts.
ReplyDeleteBut Roberts' vote is consistent with his description of his Commerce Clause jurisprudence, which made the liberal Senators smile at his confirmation hearings. I, by contrast, blanched.
Thomas's analysis of why Raich compels even the statutory construction in the Oregon case to come out in favor of the federal govt, is accurate. Roberts' vote in the Oregon case is consistent with his Commerce Clause views, which almost certainly would have put him in the Raich majority, and also, as they did, should have put him in the Oregon minority.
Glenn and Hypatia, may I ask how you think your views on the Commerce Clause might affect the Endangered Species Act?
ReplyDeleteWell, hypatia, I did go on at length about the outcomes-based reasoning of judges... :-)
ReplyDeleteNow that it's law, he is telling the Raich majority what the outcome here has to be, and he is unquestionably right.
Oh, granted, granted. The opinion is properly done, and the vote is an interesting way to call attention to stare decisis and possible inconsistencies in the reasoning of the majority. It's just that it was done by a judge who has previously displayed precious little respect for stare decisis, such as in Casey or Hamdi. Let he who is without sin...
--mds
Brambling: Let me be a tad rude and answer your question with another: How does Congress derive authority from the Commerce Clause to protect, say, the blue-beaked snow goose, found only in one county of Wisconsin?
ReplyDeleteNot sayin' Congress shouldn't, but I find entertaining the courts who strain to make these issues a matter of inter-state commerce.
It's just that it was done by a judge who has previously displayed precious little respect for stare decisis, such as in Casey or Hamdi.
ReplyDeleteBut mds, Raich is only seven months old. To not apply stare decisis when that is so, is to display no respect for it, not little.
I think that the Commerce Clause has often been a sloppy shortcut to arrive at decisions that could probably be justified by more rigorous means. Although, if the blue-beaked snow goose migrates...
ReplyDeleteBut mds, Raich is only seven months old. To not apply stare decisis when that is so, is to display no respect for it, not little.
Well, then, either:
(1) at least some members of the majority saw sufficient distinguishing features between the two cases to believe that Raich didn't apply (I haven't grokked everyone's opinion yet, by any means), or
(2) we have at least seven, probably eight, and possibly nine Supreme Court justices who defer to stare decisis only when it suits them.
Being somewhat outcomes-based myself, I'm still glad the majority got this one right. And I think there really is a distinction involving executive overreach. What I'd love to see is the cat set among the pigeons, by having a case that forces review of Raich, and points to Oregon for justification. Whereupon the spacetime continuum would implode.
--mds
Orin Kerr -- who has argued that Bush's arguments in favor of his authority to bypass FISA would likely fail by as much as 8-1 if heard by the SCOTUS -- observes this about Kennedy's majority opinion in the Oregon case:
ReplyDeleteOkay, so the case today involved assisted suicide, not enemy combatants or the NSA surveillance program. Still, the language in Kennedy's majority opinion is pretty interesting, isn't it?
He quoted Kennedy thus:
The Government, in the end, maintains that the [statute] delegates to a single Executive officer the power to effect a radical shift of authority . . . . The text and structure of the [statute] show that Congress did not have this far-reaching intent to alter the [institutional] balance and the congressional role in maintaining it.
I think Kerr has it right; Kennedy is sending a message to Bush that has zip to do with assisted suicide.
Hypatia: my question wasn't meant rhetorically, I'm not clear on the law here. I'm asking anyone who might know whether there are stronger legal grounds than the Commerce Clause for protection of the endangered blue-beaked snow goose, as Anonymous suggested there might be.
ReplyDelete(By the way, there is such a thing as a "blue goose" which was considered a separate species but now is classified as a subspecies of the snow goose. It migrates, however, like all geese I'm aware of who haven't settled into some tedious farm routine.)
We don't know anything about Roberts views of the Commerce Clause as a result of the Oregon case. The observations posted here about Raich come from Thomas's dissent, which Roberts did not join. He'll display his consistent or inconsistent commerce clause views another day.
ReplyDeleteAnd this observation vis a vis the Commerce clause is not germane to my point, which is that Roberts has now shown he will happily side with the executive in cases involving extreme executive overreaching, which is, two days into thinking about it, the best way to categorize and explain this case.
This is the first evidence we have relating to what Roberts will do when his partisan views and his personal social views are implicated in a case. His "interpretation" of federal law in the Oregon case nicely comports with the views of the Republican president he helped get elected, and also with his personal views about the "sanctity" of human life.
By contrast, four other justices appointed by Republican presidents were able to conclude that this Republican president grossly overstepped his authority here.
Roberts vote is a very bad omen of the Court to come.
Glenn and Hypatia, may I ask how you think your views on the Commerce Clause might affect the Endangered Species Act?
ReplyDeleteI don't know enough about this statute to say whether a justification could be patched together for why Congress should be legislating in this area, but I tend to think it shouldn't be. There are two issues: (1) what is allowable under current court jursiprudence on the CC and (2) what should the state of that jursiprudence be.
Under (1), Congress probably can legislate endangered species (subject to my caveats that I'm not very familiar with the law), but Congress almost certainly shouldn't be able to under (2).
Concerns that the distant Federal Government would take over most areas, rendering the states impotent and captive, really were pervasive at the Founding, and promises were made in the 10th A. and elsewhere that the Federal Governemnt would have authority to act only in the specifically enumerated areas and everything else left to the states.
I really think we need to start taking that seriously again. We should remember that the GOP has solid majorities in both Houses. Do people in blue states really want to live under a system where Republicans from Alabama and Texas and legislating almost all aspects of their lives?
Okay, thanks. I feel endangered species present a different set of ethical issues, but I'll ask some people I know who have worked in this field and get back to you later.
ReplyDeletePicking up on Glenn's last comment, I think if you're a supporter of states rights, then you are politically homeless. You've been abandoned and betrayed by the Republican party. An effective strategy for Democrats, one would think, would be actively court the states rights crowd -- to start speaking the language of states rights and pick up the mantle that was dropped by Bush. As Glenn pointed out, this isn't about clever politics. Given the way things have turned out, liberals NEED states rights to live in the type of environment they desire.
ReplyDeleteThere are so many openings now for the Democrats to break through and revitalize itself. States rights, privacy, fiscal responsibility, Iran, etc. If the list sounds familiar, it's because the Republicans took total ownerships over these core American issues. The Democrats have an opportunity now to reclaim them. But are they open to it? I suspect that the old leadership -- Nancy Pelosi, Harry Reid, John Kerry, etc. -- are not. Where are the new voices?
What I'd like to see is a little more emphasis on the Ninth Amendment before Democrats rush to embrace the Tenth. I don't want to lose individual liberties just because I live in Kansas, and we've all decided to effectively scrap the Fourteenth Amendment and reverse incorporation. On the other hand, Schiavo, a federal marriage amendment, medical marijuana, assisted suicide, etc, can also be cast as government intrusion into personal matters, not just a cooption of states' rights. More fundamentally, I should be free to worship as I see fit, but I wouldn't wish to return to the days of states having official religions. (I also would like the Dominionists to fail in establishing a national church, but that's another story.)
ReplyDeleteIt also does no good to champion states' rights if the people running the federal government are free to disregard them. Many Democrats are punished at the polls for their excessive views on gun control, yet James Sensenbrenner can ram through the Real ID act, rejecting a Democratic amendment to prevent ties to gun registries, and Republicans suffer no electoral consequences. Threre is too much of a disconnect, be it over the Real ID act, be it over Medicare D, or be it over the nationwide ban on abortion that the Dobsonites will call for the minute Roe is overturned.
--mds
An effective strategy for Democrats, one would think, would be actively court the states rights crowd -- to start speaking the language of states rights and pick up the mantle that was dropped by Bush.
ReplyDeleteIn particular, IMO, if Dems would frame abortion and gun control as state's rights issues, they could take half the Republicans' base in one go.
I know lots of people who hate what the Republicans are doing these days, but one (or both) of those two issues is a deal-breaker for them.
And yet, less than two months after September 11, what was the Justice Department doing? What was the Attorney General's attention devoted to? Working in secret, and in violation of its promises to the State of Oregon, to figure out how it could trample on the democratic process and on principles of states rights which conservatives claim to believe in...
ReplyDeleteRight. And totally consistent with its attitude towards the issue of terrorism before 9/11. Recall that in listing its budgeting priorities for the then coming year, terrorism didn't even make it to the top 10.
Propagandee
In particular, IMO, if Dems would frame abortion and gun control as state's rights issues, they could take half the Republicans' base in one go.
ReplyDeleteUh, no way. Almost no one actually cares about state's rights. State's rights is a code word for being anti-Roe. And this is nothing new; before that state's rights had to do with civil rights. Always it comes down to the unfairness of denying states the right to take away the rights of individuals. Boo hoo.
If you focus on the surface and ignore what's underneath, you'll get nowhere. Don't be fooled by all the talk about "state's rights." How many people both oppose doctor-assisted suicide but were happy that Oregon got its way, because of state's rights? Not very many.
Uh, no way. Almost no one actually cares about state's rights. State's rights is a code word for being anti-Roe.
ReplyDeleteExactly, and this is what makes Justice Scalia so frustrating. He's a "states' rights" advocate when he wants to overturn Roe, or weaken the Americans with Disabilities Act, yet doesn't care about states' rights one whit when it comes to elections, medical marijuana, assisted suicide, etc. It's just cover for predetermined outcomes on specific cases.
As I look at this decision a little more, I really do think that the enhanced focus on Executive Branch overreach does distinguish it significantly from Raich. Among other things, I don't think this decision could rule out all federal action against assisted suicide, just unilateral action by the DoJ (though I certainly could be wrong about this). The cases are only the same if one ignores the overly broad exercise of executive power as opposed to federal power. And Justice Thomas made it clear in Hamdi that he has no problem with executive overreach, so to him the cases look identical.
--mds
Reply to Todd who states that he doubted if Oregon ask Ashcroft before passing it. Of couse we didn't - the law first past in 1994 and again in 1997, six and three years before anyone ever heard of John Ashcroft.
ReplyDeleteMy wife has an uncurable form of cancer, and while Oregon may not always be a utopia, it does have the Death with Dignity Act and that keeps us here. She doesn't want to die but she will eventually and the prospects of living in agony for months on end to satisfy the belief of a bunch of fundies, who get off on the idea that everyone should die in agony to atone for hypothetical sins, is pure BS.
We have lived here most of our lives and voted for DWD twice and don't feel that it is within the purview of a power mad mental midget like Bush or any of his minions to come into our state and say that this is against their beliefs so we can't do it
The law has be in force since 1997 or 98 and as of the end of 2005, 203 persons had taken advantage of it. There has been NO abuse of it. Abuse would be impossible as one must jump through many hoops to qualify to receive the drugs.There are many safeguards and the final and most powerful being that the individual has the right to rescind at any time and must ingest the medication with no help from anyone else.