I’m no expert on the topic (I anxiously await Randy Barnett’s comments), but does anyone else think the opinion in Gonzales v. Oregon issued today (limiting the application of the Controlled Substances Act and upholding Oregon’s assisted suicide law) could have been a masterful dissent in Gonzales v. Raich (reading the Controlled Substances Act to preclude the legal use of medical marijuana). I’m getting my information from SCOTUSblog (as good as the Court itself, and edited, too!), so keep that in mind, but just read these sentences from SCOTUSblog describing the case:
The Court conceded that the attorney general does have the authority to write rules for enforcing federal laws on illegal drugs. But, it said, federal law “does not authorize the Attorney General to bar dispensing controlled substances for assisted suicide [how about “medicinal use”?] in the face of a state medical regime permitting such conduct.
“The background principles of our federal system…belie the notion that Congress would use such an obscure grant of authority to regulate areas traditionally supervised by the states’ police power.” Thus, the Court said, it was unnecessary to determine whether Congress had made a clear statement of intent to interfere with state authority over medical practice, or whether Congress had intended to preempt that state authority.
The federal Controlled Substances Act “and our case law,” the Court said, “amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally….The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the State’s police powers.”
How you square all of that with Raich is beyond me, but, hey — if this means news of federalism’s death was exaggerated, I’m happy with the result.