In the world of op-ed columnists, it is, I suppose, the norm for one to opine authoritatively on a topic that one understands little about. That’s the only defense that I can think of for E.J. Dionne Jr.’s ridiculously distorted op-ed today on the Oregon physician-assisted suicide case.
The careful reader would have a difficult time discerning it from Dionne’s column, but the case of Gonzales v. Oregon did not involve any question of “constitutional authority”. Nor did it involve the question whether the issue of assisted suicide should be decided by “federal courts and bureaucrats,” on the one hand, or “by the people and their representatives,” on the other. Instead, the case called for the Court to decide how the federal Controlled Substances Act and federal administrative implementation of that Act interacted with a ballot measure that Oregon voters approved. There were, in other words, competing democratic enactments – one at the national level (accompanied, to be sure, by administrative implementation) and one in Oregon.
Dionne is wrong to state that the federal government’s position on administrative implementation of the Controlled Substances Act was “originally put forward” by the Left’s bogeyman, former Attorney General John Ashcroft. The head of the DEA in the Clinton administration took the same position, but was later overruled by Janet Reno.
Dionne is wrong to assert that Justice Scalia’s dissent, joined by Chief Justice Roberts and Justice Thomas, reflected Scalia’s “willingness to impose his view (and mine) by judicial fiat.” Scalia was deferring to the federal administrative interpretation, and no one who understands Scalia’s principled deference to the administrative processes would have been surprised by his position.
Dionne is wrong to claim that Scalia “relied on the vast constitutional authority of . . . Webster’s dictionary” and insisted on imposing his “own ‘naked value judgment.’” Scalia was merely defending the validity of DOJ’s interpretation of the statute – and its value judgment.
And, for all these reasons, Dionne is wrong – ridiculously wrong, doesn’t-know-up-from-down wrong – in painting the Scalia dissent as part of some imagined (and imaginary) “activist jurisprudence determined to write conservative ideological preferences into law.”
Dionne plays his profound confusion into an attack on Judge Alito’s confirmation. I strongly suspect that Alito would have joined Scalia’s dissent. Indeed, in a case roughly analogous, Alito voted to uphold a federal administrative interpretation that overrode state law on a hotly contested issue of social policy. But that case, as it happens, involved Medicaid abortion policy, and Alito provided the decisive vote in upholding the Clinton administration’s override of a pro-life Pennsylvania law. Given Scalia’s views on administrative law, I have every reason to believe that he would have voted the same way. So much for Alito’s and Scalia’s pushing an “activist jurisprudence determined to write conservative ideological preferences into law.”
As I have said, although I believe, based on my own review of the briefs, that the dissent’s position in Gonzales v. Oregon was the correct one, I acknowledge that the issue is a complicated one that presents many opportunities for wrong turns (and perhaps I have taken one). But Dionne’s profoundly confused column gives no indication that he has even glanced at the federal government’s brief, much less given it serious thought.