Death and Federalism
Handle the federal-state divide with care.

n 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.