Mission creep is something that conservatives typically worry about. But it is the liberals and moderates on the Supreme Court who foiled one of the worst instances of federal mission creep last week by refusing to void Oregon’s physician assisted suicide law.
Oregon voters in the 1990s twice approved the Death with Dignity Act that allows terminally ill patients to obtain prescriptions for lethal doses of barbiturates from their doctors.
But in an act of sheer administrative chutzpah, Attorney General John Ashcroft invoked the 1970 Controlled Substances Act – a law written for purposes that had nothing to do with assisted suicide – to nullify the will of Oregon voters.
The Nixon administration conceived the Controlled Substances Act at a time when the backlash against the promiscuous 1960s drug culture was at its height. The Act, which was part of the broader War on Drugs, consolidated the piecemeal drug laws that were proliferating around the country and created a list of drugs that would be federally controlled.
Some drugs such as marijuana that supposedly have no valid medical uses were put on Schedule I of the list and banned outright. Others were allowed to be distributed – but only for “legitimate medical purposes.”
Ashcroft first tried to hijack the act to undo the will of Oregon voters when he was a Senator. He argued that assisted suicide was a “perverse” not a “legitimate” medical practice and urged then Attorney General Janet Reno to go after Oregon doctors prescribing listed drugs for lethal ends.
Reno declined, however, pointing out – rightly – that the phrase “legitimate medical purposes” was intended only to prevent “trafficking in controlled substances for unauthorized purposes and drug abuse.” In other words, the distribution of, say, morphine to morphine addicts or opiates to drug peddlers was not medically legitimate. But the act offered no basis to conclude anything, one way or the other, about the legitimacy of prescribing drugs for assisted suicide.
If it did, Reno noted, it would replace the states with the federal government as the primary regulator of the medical profession, something that could be neither historically nor constitutionally justified. It would put itself in the novel role of resolving the “earnest and profound debate about the morality, legality and practicality of physician-assisted suicide.” If the Congress actually had such sweeping intentions, it would have said so explicitly.
But if there was any doubt about where Congress stood, it was clarified when it killed a bill that Ashcroft and his fellow Senators proposed to ban the use of controlled substances for assisted suicide.
Ashcroft, however, did not give up.
Upon assuming the Attorney General’s office – weeks after ramming the Patriot Act through Congress – he tried to do administratively what he had been unable to do legislatively. Under the guise of clarifying the Controlled Substances Act, he issued an administrative directive (read edict) declaring the use of any listed substance for assisted suicide a prosecutable offense.
But if Ashcroft’s behavior is troubling, the dissent that Supreme Court Justice Antonin Scalia wrote – and Chief Justice John Roberts joined – is downright frightening for anyone concerned about reining in the ever-extending federal tentacles.
Neither one of them could find any defensible grounds for stopping an unelected federal bureaucrat from usurping the will of state voters and thwarting the intentions of Congress by stretching a law for purposes that its originators likely never imagined. (If this is strict constructionism, who needs judicial activism?)
Scalia admitted that deterring assisted suicide was not among the enumerated powers conferred to the federal government under the Constitution. He also conceded that questions of public morality have typically been governed by the so-called police powers of the states.
However, he noted, the federal government has used – with the court’s blessing – its powers to regulate interstate commerce for all sorts of purposes that go well beyond the powers enumerated in the constitution. Therefore, unless the court was willing to overthrow decades of settled jurisprudence, the real question was how much deference the court owed an administrative agency in interpreting existing laws?
Scalia relied on two Supreme Court precedents (Auer v. Robbins and Chevron v. NRDC) to argue that an agency’s interpretation of standing regulations is “controlling unless it is plainly erroneous or inconsistent with the regulation.”
In other words, a rule is legitimate if it is not preposterous; it must stay, if it can’t be laughed out of court. Under this formulation, once a law is conceived, there is virtually no limit to its reach beyond the creativity of the bureaucracy enforcing it.
This is the bureaucratic state writ large.
Fortunately, in a peculiar role reversal in this case, the liberal justices joined by the two conservative moderates voted 6-3 against letting the Justice Department displace the states in regulating an issue of public morality. Yet many of these same justices don’t have any qualms about handing the federal government massive powers over the states in other matters such as environmental policy.
What the tendentious legal reasoning of both the liberal and conservative justices demonstrates is that having abandoned the constitution’s scheme of a federal government with limited and enumerated powers, neither side has any consistent judicial philosophy that would limit Uncle Sam’s reach.
The only hope for preventing federal mission creep in such a state of affairs lies not in any firm principles of either party but in the paralyzing conflicts of their partisan agendas.
That is not much of a hope.
Shikha Dalmia is a senior analyst at Reason Foundation.