Wednesday, February 21, 2007

Old (Jan.18,2006): The Supreme Court's Schizophrenic "New Federalism"

(This OpEd was written on Jan. 18, 2006)

The Supreme Court’s Schizophrenic “New Federalism”

By: Michael Anthony Lawrence

From the standpoint of allowing states to provide heightened protection for citizens’ individual liberties beyond that required by the U.S. Constitution, it’s been a decidedly mixed year in the U.S. Supreme Court.

The Court got it right in yesterday’s Gonzalez v. Oregon decision, in which it upheld the Oregon Death With Dignity Act of 1998, which provides Oregon citizens greater freedom of choice in making difficult end-of-life decisions, from being overridden by the federal Controlled Substances Act, thereby redeeming itself somewhat from the Gonzalez v. Raich decision handed down last term (June 2005). In Raich the Court allowed the Controlled Substances Act to supersede another state law, the California Compassionate Use Act of 1996, which provided greater freedom to state citizens to cultivate and use marijuana for personal medical purposes on the advice of a physician. Both cases involved appeals by the Bush Administration of decisions from the lower federal court, the Ninth Circuit Court of Appeals, upholding the primacy of the state laws.

The decisions involve the constitutional authority of states to determine for themselves policy matters traditionally left to the states – specifically, the regulation of medical care. In a nutshell, under the American system of government the federal Constitution describes the base level of protection that all government – federal, state, and local – must provide to We the People. The judiciary (ultimately the Supreme Court) enforces this constitutional floor on the various other branches and levels of government with its power of judicial review. Congress, for its part, operates only pursuant to limited powers enumerated in the Constitution (which does include, in fact, the interstate commerce power to regulate the interstate traffic of drugs under the Controlled Substances Act, the federal statute at issue in the Raich and Oregon cases). Balanced against this limited federal power is the broad residual sovereign power of the states to regulate all other matters, as guaranteed by the tenth amendment.

A much-lauded feature of this constitutional design of dual sovereigns is that it provides the potential for greater protection of freedom for the individual by providing the opportunity for each state, as Justice Brandeis explained over 70 years ago, to “serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.” The point here (again) is that states are always free to grant their citizens greater measures of freedom and liberty than the baseline required by the federal Constitution; never, however, may states grant them less freedom.

And yet the Bush Administration – it of the supposed politically conservative bent – did not hesitate in these cases to betray the traditional conservative principle of states’ rights in favor of its deeper agenda of pushing on others its own set of fundamentalist Christian moral views, including its “reefer madness” paranoia about marijuana (to be fair, the Clinton Administration was similarly paranoid) and its stance on limiting individual autonomy on compassionate end-of-life decisionmaking. Make no mistake about it – the Bush administration did not need to bring these cases to the Supreme Court. They both involved an aggressive, bordering on unnatural, reading of the federal Controlled Substances Act. If the Administration were truly committed to the traditional conservative ideal of preserving states’ rights, it would have left well enough alone and not challenged the prerogative of the sovereign governments to make policy on matters traditionally reserved for state authority such as regulation of medical care.

The Court properly resisted the Bush Administration’s arguments in Oregon, but got it wrong in Raich by electing instead to return to an approach favoring an overly-paternalistic federal government operating at the expense of states’ rights (to be sure, there are times when such an approach is necessary, such as to enforce federal civil rights or environmental legislation against reluctant states - but Oregon and Raich are a far cry from those). Make no mistake about this as well – while the Court decided Raich on valid constitutional grounds, it just as easily could justifiably have upheld the lower court’s understanding of the limits of the federal power.

At the end of the Court’s term, then, we are left with a sense of uncertainty about the vitality of the Supreme Court’s vaunted “New Federalism.” Over the course of some years the Court seems to have been moving in a direction of giving states greater respect under the constitutional scheme to operate independently in furtherance of providing additional protections for individual citizens, but now we cannot be so sure of the depth of this commitment.