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Gonzales v. Oregon

Casey gently reminded me today that I hadn’t talked about Gonzales v. Oregon.
[For those unaware of the case: Oregon passed a law allowing physicians, at the request of terminally ill patients in certain circumstances, to prescribe a specific drug mix that would allow them to peacefully die. Attorney General John Ashcroft stepped in and said that if any doctors did so, he would revoke their license to handle drugs listed in the Federal Controlled Substances Act. The State of Oregon appealed to the Supreme Court. This is a case that involves both the reach of the CSA and also states’ rights and commerce clause issues. Oral arguments were heard last week.]
I haven’t talked about it much recently because, quite frankly, I put quite a lot of effort and anticipation into Raich, and even though I knew the odds were likely against my prediction, it was a bitter disappointment when SCOTUS ruled against us. I’m not prepared to get that attached to Gonzales v. Oregon.
I do think it’s an important case (particularly as it relates to the CSA and states’ rights), and I hope Oregon wins (Radley Balko’s view on the subject is close to mine). But in general, I’m mostly interested in waiting until the decision and analyzing the votes and opinions. This is the first case heard by new Chief Justice John Roberts, and his opinion in the case may say a lot about what we can expect from him in the future (early reports are not good based on his questioning — Tom Goldstein notes that “the federalism ‘revolution’ was actually more of a ‘petty insurrection’ and George Bush has now officially put it down with the change from WHR to JGR.”)
Oregon is not the same as Raich, and there is some reason to believe that Oregon may prevail. Most reliable predictions I’ve seen, put it at a slight win for Oregon, or a 4-4 tie if O’Connor leaves before the decision.
A nice overview of the oral arguments is presented in They’re Dying in Oregon
Should the Supreme Court save them?
by Emily Bazelon in Slate.
It shows just how tricky the case is and both attorneys were dancing around some nasty potholes. At one point, the government’s attorney Paul Clement tried to bring in Raich, noting that the Supreme Court ruled last term that states didn’t have the authority to prescribe marijuana.

Then Ginsburg snatches the lifeboat away. “But Congress said when it made a drug Schedule I, ‘No. Never,’ ” she says. “With Schedule II, it’s OK with a doctor’s prescription.” Marijuana is definitely Schedule I. If Clement loses, this exchange will probably be why. The drugs that doctors prescribe to assist suicide are legal. Marijuana is illegal. The attorney general who is trying to nab Oregon doctors with a law that says nothing about assisted suicide is one executive appointee. Congress that passed a law explicitly criminalizing pot is the whole elected legislature.

And this is the point where I don’t know if I should laugh or cry. It may end up that states can prescribe lethal drugs because the federal government has classified them less “bad” than marijuana. If Oregon succeeds, then our government will have determined that states do not have the right to save lives (with pot), but they can end them (with Schedule II drugs).
Excuse me while my head explodes.
This does, however, emphasize the importance of drug policy reformers continuing the fight to get marijuana re-scheduled (Once marijuana is no longer Schedule I, Raich becomes essentially irrelevant, and Oregon may become a partial precedent for deciding future medical marijuana cases.)
And another important point. We cannot depend on the Supreme Court to do our work for us. Raich taught us that. It would have been easier if SCOTUS had told the executive and legislature that we have rights. But remember that SCOTUS didn’t make the laws or go after medical marijuana patients. If it wasn’t for legislators and administrations tossing away the constitution in their quest for power over us, there would’t have been a Raich or Oregon.
We need to work to change those who make and enforce the laws (and we can — more on that later), as well as continuing the pressure on federal agencies.
For more detailed analyses of Gonzales v. Oregon, see these at SCOTUS blog by Tom Goldstein and Lyle Denniston. Also read Does Pot Lead to Suicide for Supreme Court Justices? Vague Commerce Clause precedents give free rein to personal preferences. by Jacob Sullum.

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