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Bench Memos

NRO’s home for judicial news and analysis.

More on the Oregon Case



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On the surface, I agree that Justice Scalia’s dissent presents a more compelling interpretation of the Controlled Substances Act than does Justice Kennedy’s majority opinion. In my view, this says more about Kennedy’s opinion than it does the underlying merits. I believe the Court decided the assisted-suicide case correctly because I believe that the so-called clear statement rule – the rule that Courts will not find that a statute displaces states from areas of traditional state concern without a “clear statement” to that effect from Congress – tips the balance in favor of Oregon’s claim. For whatever reason, the majority did not place too much weight on this argument, and chose to rest the holding on the CSA and a narrow interpretation of various administrative law doctrines instead. Perhaps this was because some of those in the majority did not want to place a greater emphasis on federalism principles. I don’t know. But this is hardly the first case in which I believe the Court reached the right legal result without doing so in the best or most persuasive fashion.



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