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November 6, Attorney General John Ashcroft reversed on the Clinton
administration's refusal to prosecute doctors for assisting their
patients to commit suicide. Specifically, Ashcroft reinstated the
Drug Enforcement Administration's position that prescribing drugs
to assist suicide is illegal under federal law. Oregon — the
only state in the nation where doctor-assisted suicide is legal
— rushed to court and obtained a temporary injunction barring
enforcement of Ashcroft's decision. Unfortunately, if also somewhat
predictably, many conservatives eager to overturn Oregon's law have
scoffed at the state's claims. National Review, for one,
suggested that the mere existence of a federal drug statute resolves
any federalism concerns (see
here). It does not. Oregon's specific legal claims may be weak.
But their federalism concerns nonetheless merit serious consideration.
Assume that
doctor-assisted suicide, at least in some cases, is tantamount to
murder. This proves nothing. Routine criminal enforcement of even
the most heinous crimes is the province of state and local governments,
not federal agencies. There is no principled basis upon which to
call for the federal prosecution of doctors who kill their patients,
unless we are also to justify the complete nationalization of murder
prosecutions generally.
It bears reiterating
that ours is a federal government of limited and enumerated powers.
The federal government only has those powers specifically enumerated
in the Constitution, such as the powers to raise armies, impose
tariffs, coin money, and regulate commerce "among the several
states." There is no federal police power to criminalize each
and every violent or immoral act. (For more on the federal-state
balance, click
here.) Defenders of federal intervention in Oregon note that
doctor-assisted suicide typically requires the administration of
federally controlled medicines, which are themselves objects in
interstate commerce. But this does not make doctor-assisted suicide
a federal concern, any more than the use of a gun turns a local
murder into a federal case — or, for that matter, authorizes
a national Gun-Free School Zones Act.
Under the federal
Controlled Substances Act (CSA), a doctor may only prescribe, dispense,
or administer a regulated drug for a "legitimate medical purpose."
As interpreted by the Drug Enforcement Administration, assisting
a patient to commit suicide is not a "legitimate medical purpose,"
and is grounds for federal prosecution. Presumably, the CSA is a
constitutional exercise of federal power to regulate objects in
interstate commerce. Nonetheless, federal authority to regulate
the sale and distribution of controlled substances might not reach
all instances of drug possession or use, particularly where such
use is intrastate and noncommercial. Last term, a unanimous Supreme
Court rejected California's effort to carve out a "medical
necessity" exemption to the CSA for the medical use of marijuana.
Yet the Court explicitly withheld judgment as to "whether the
Controlled Substances Act exceeds Congress's power under the Commerce
Clause."
Were Congress
to enact a stand-alone, national prohibition on doctor-assisted
suicide, the law would likely exceed the scope of federal authority
under the commerce clause. Assisted suicide, as such, is not commercial
activity, nor is its control a necessary part of broader commercial
regulation. Perhaps paradoxically, the greater power to regulate
goods in interstate commerce, as such, does not include the lesser
power to regulate each and every noncommercial, intrastate use of
such goods. The mere use of an item sold in interstate commerce
is not, by itself, enough to support federal intervention. Exercise
of the federal commerce-clause power requires more than that. Thus,
Congress may regulate the sale and distribution of guns in commerce,
but cannot regulate the possession of guns near schools (see, e.g.,
United States v. Lopez). Otherwise, constitutional
federal statutes also have constitutional limits. Last year, a unanimous
court reminded Congress that construing the federal arson statute
to extend to any home with even a marginal connection to interstate
commerce would raise serious constitutional concerns.
In the end,
Ashcroft's move most likely will survive legal scrutiny. Federal
courts, and the Supreme Court in particular, may be reluctant to
dissect the CSA and decide which parts pass constitutional muster
and which others do not. There is ample precedent for upholding
broad regulatory schemes covering commercial goods, even where they
sweep in some intrastate or noncommercial conduct. But this does
not mean that the implications to federalism of Ashcroft's decision
should be taken lightly. Most health and safety regulation, including
the regulation of medical practice, was traditionally reserved to
the states. Even where constitutional, federal officials should
be reluctant to tread into such areas of traditional state concern.
Federalism is the ultimate bulwark of American liberty. Our political
leaders should handle the federal-state divide with great care.
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