CNN puts blurry dots covering the breasts of a woman in a Matisse painting.

The clip is hilarious.

At 0:47, they cut to a voluptuous newswoman in a tight, low-cut shirt. It would have been cool if they'd put blurry dots over her breasts too.

(Thanks to my son Chris for IMing me about that. He says the effect was much more noticeable and ridiculous on HDTV, where he saw it.)

ADDED: Perhaps, like me, you thought of Attorney General John Ashcroft and the $8,000 drapery.

Knowledge of disparate impact on Arab Muslims is not the same as intent to discriminate against them.

Justice Kennedy writes for the majority in a 5-4 decision, Ashcroft v. Iqbal, announced today:

[Iqbal's] only factual allegation against [John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation] accuses them of adopting a policy approving “restrictive conditions of confinement” for post-September-11 detainees until they were “ ‘cleared’ by the FBI.” Accepting the truth of that allegation, the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU due to their race, religion, or national origin. All it plausibly suggests is that the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity. Respondent does not argue, nor can he, that such a motive would violate petitioners’ constitutional obligations. He would need to allege more by way of factual content to “nudg[e]” his claim of purposeful discrimination “across the line from conceivable to plausible.”

"Attorney General Michael Mukasey collapsed Thursday night while giving a speech to the Federalist Society in Washington."

"Audience members said they began praying, fearing a stroke."

IN THE COMMENTS: Host with the Most said...

Hope he recovers.

This just in: Bush haters partying at the news.

I checked Daily Kos, where the front page post ended: "Justice Alito and former Attorney General Ashcroft were among those in attendance in this room of ~2000, and everyone there was pretty much silent, crying and praying quietly. Let us keep Mukasey in our prayers as well tonight."

There are 80 comments over there now, and they are completely respectful. One commenter says: "According to local news, he was giving a 'passionate speech' when he got stuck on and kept repeating a word. Then he pitched forward and lost consciousness."

UPDATE: Josh Marshall writes:

AG Mukasey was roughly twenty minutes into a speech defending the administration's counter-terrorism policies and particularly arguing against prosecutions of people who made decisions in the aftermath of 9/11 -- essentially arguing against what he believed amounted to the criminalization of policy differences. Mukasey appeared in earnest about it and appeared to choke up. Soon, what at first appeared to be choking up, blended into slurred words. And twenty to thirty seconds later he collapsed. His fall was broken by an FBI agent nearby.

"I thought I had just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general...."

Disturbing testimony before the Senate Judiciary Committee from James B. Comey:

Although Mr. Comey declined to say specifically what the business was that sent [Alberto] Gonzales to the bedside of [John] Ashcroft in George Washington Hospital, where he lay critically ill with pancreatitis, it was clear that the subject was the National Security Agency’s secret domestic surveillance program. The signature of Mr. Ashcroft or his surrogate was needed by the next day, March 11, in order to renew the program, which was still secret at that time....

“I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that,” Mr. Comey replied....

Mr. Gonzales and Mr. Card entered the room, with Mr. Gonzales carrying an envelope. “And then Mr. Gonzales began to discuss why they were there, to seek his approval for a matter,” Mr. Comey related.

“And Attorney General Ashcroft then stunned me,” Mr. Comey went on: He raised his head from the pillow, reiterated his objections to the program, then lay back down, pointing to Mr. Comey as the attorney general during his illness.

About that highly experienced Supreme Court law clerk.

A few days ago, we were talking about Justice Alito's new law clerk Adam G. Ciongoli, an experienced lawyer who worked closely with Attorney General John Ashcroft on Bush Administration policies that addressed theh 9/11 attacks. Today, Adam Liptak rounds up some opinion:

"We don't normally contemplate a high-level Justice Department official becoming a Supreme Court clerk," said Ronald D. Rotunda, a specialist in legal ethics at George Mason University School of Law. "It's just asking for problems that are unnecessary." Most Supreme Court law clerks, who prepare memorandums and draft decisions for the justices, have little of note on their résumés beyond superior grades at a top law school and a clerkship with a federal appeals court judge.

"They're like legal Doogie Howsers — child prodigies of the law," said David Lat, a former federal prosecutor whose blog "Underneath Their Robes" reports on the hiring of Supreme Court clerks. "Yet they're influencing decisions that affect millions."...

"It really indicates a lapse in judgment," Deborah L. Rhode, who teaches legal ethics at Stanford, said of Justice Alito's decision. "I just don't think it helps your reputation for nonpartisanship, particularly after such partisan confirmation hearings, to start out by hiring someone who is perceived to have an ideological agenda."...

"He cannot work for the justice on any cases that come before the court if he worked on those matters at Time Warner or the government," said Stephen M. Gillers, who teaches legal ethics at New York University. "You don't want him to the judge [sic] the quality of his own work."

Of course, it will never be possible to know what sort of casual conversations may take place in Justice Alito's chambers, said Monroe H. Freedman, who teaches legal ethics at Hofstra University. "No one is ever going to be able to police that," Professor Freedman said.

But, he added, "There is also a presumption that the justice can think for himself regardless of anyone he gets advice or counsel from."...

In all, Justice Alito's decision to hire Mr. Ciongoli was smart, said Steven Lubet, who teaches legal ethics at Northwestern. "Somebody with some real experience can provide better work than someone who's green," Professor Lubet said. "It's a terrific idea."

I'm surprised the opinion is as positive as it is. I would have expected a flood of comments like Rhode's, especially since so many lawprofs opposed Alito anyway. But maybe lawprofs like the idea that mature persons with a depth of experience working closely with Supreme Court Justices. Ciongoli aside, we see a potential trend. Maybe people like us -- and not our students -- should have these jobs. Hey, take me!

Alito's law clerk.

The WaPo reports:

Justice Samuel A. Alito Jr. has hired one of the architects of then-Attorney General John D. Ashcroft's policies to serve as his law clerk at the Supreme Court for the rest of the current term, the court announced yesterday.

Adam G. Ciongoli, 37, a senior vice president at Time Warner Inc., served as counselor to Ashcroft from 2001 to 2003. He attended Georgetown University Law Center, clerked for Alito at the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit from 1995 to 1996, and helped prepare the justice for his recent confirmation hearings.

Ciongoli was an aide to Ashcroft during Ashcroft's years as a senator and then came to the Justice Department, where he advised Ashcroft on terrorism issues in the aftermath of the Sept. 11, 2001, attacks. Among the issues he worked on were the detention of thousands of terrorism suspects in the United States and the use of military tribunals to try them.

As a law clerk for Alito, his responsibilities will include helping Alito draft opinions, prepare for oral argument and sift through the mountain of appeals that arrive each week.

Ciongoli's appointment, which will last about five months, is unusual: Though there has been a slight trend at the court toward hiring law clerks with a few years of work experience, the vast majority of clerks are recent law school graduates.

Among those who have come to the court after working elsewhere, none in recent memory had held a government position as senior as Ciongoli's at the Justice Department, where he was widely regarded as one of Ashcroft's closest confidants.

I do find this troubling, but the fact that Ciongoli is a former clerk of Alito's takes some of the edge off it. It doesn't seem that Alito went looking for someone with an inside knowledge of important cases that he is likely to face. And there is a process in place for law clerks to recuse themselves: "According to a 2002 federal publication, 'Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks,' clerks should not participate in cases that they worked on 'in a previous legal job,' or about which they have personal knowledge of disputed facts."

Perhaps it is a good thing for the Justices to hire more experienced persons as their clerks. Here Alito has tapped a person he trusted to help him with his confirmation hearings. Hiring Ciongoli seems so strange because we are used to the strangeness of thoroughly green clerks.

Oregon wins on physician-assisted suicide.

The Supreme Court surprises me with this one:

The Supreme Court on Tuesday upheld Oregon's one-of-a-kind physician-assisted suicide law, rejecting a Bush administration attempt to punish doctors who help terminally ill patients die.

Justices, on a 6-3 vote, said the 1997 Oregon law used to end the lives of more than 200 seriously ill people trumped federal authority to regulate doctors.

That means the administration improperly tried to use a federal drug law to prosecute Oregon doctors who prescribe overdoses. Then-Attorney General John Ashcroft vowed to do that in 2001, saying that doctor-assisted suicide is not a ''legitimate medical purpose.''

Justice Anthony Kennedy, writing for the majority, said the federal government does, indeed, have the authority to go after drug dealers and pass rules for health and safety.

But Oregon's law covers only extremely sick people -- those with incurable diseases, whom at least two doctors agree have six months or less to live and are of sound mind.

Fascinating. I'll have more later. For now, I'll just observe that this provides a nice occasion for liberals to feel mellow about that erstwhile bugaboo federalism.

UPDATE: Kennedy writes:

The idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation in the CSA's registration provision is not sustainable....

The importance of the issue of physician-assisted suicide, which has been the subject of an "earnest and profound debate" across the country, Glucksberg, 521 U.S., at 735, makes the oblique form of the claimed delegation all the more suspect. Under the Government's theory, moreover, the medical judgments the Attorney General could make are not limited to physician-assisted suicide....

The statute and our case law 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 silence is understandable given the structure and limitations of federalism, which allow the States "'great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.'"....

Even though regulation of health and safety is "primarily, and historically, a matter of local concern," Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985), there is no question that the Federal Government can set uniform national standards in these areas. [Citation to the medical marijuana case, Raich.] ....

The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.

Dissenting are Roberts, Scalia, and Thomas. It's quite interesting that the majority is made up of everyone who voted in favor of congressional power in the medicial marijuana case, plus O'Connor and minus Scalia. That means only O'Connor took the strong federalism position in both cases. And only Scalia sided with the government in both cases.

Let's look at Scalia's dissent:

The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality -- for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U.S. 308, 321-323 (1913); Lottery Case, 188 U.S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.

The most interesting dissenter is Thomas, of course, because he voted against federal power in the medical marijuana case. He writes:

I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. Raich, supra, at ___ (THOMAS, J., dissenting); cf. Whitman, supra, at 486-487 (THOMAS, J., concurring) (noting constitutional concerns with broad delegations of authority to administrative agencies). But that is now water over the dam. The relevance of such considerations was at its zenith in Raich, when we considered whether the CSA could be applied to the intrastate possession of a controlled substance consistent with the limited federal powers enumerated by the Constitution. Such considerations have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power. This is particularly true where, as here, we are interpreting broad, straightforward language within a statutory framework that a majority of this Court has concluded is so comprehensive that it necessarily nullifies the States'" 'traditional . . . powers . . . to protect the health, safety, and welfare of their citizens.'" Raich, supra, at ___, n. 38 (slip op., at 27, n. 38). The Court's reliance upon the constitutional principles that it rejected in Raich -- albeit under the guise of statutory interpretation -- is perplexing to say the least.

Thus, Raich was wrong, but now it's decided, and you ought to have to face up to the consequences of your own decision.

But there is some reason to see statutory interpretation and constitutional law as different when it comes to the division of power between the states and the federal government. You might want to interpret statutes narrowly to preserve room for the states to pursue their individual policies but still not want to say that Congress lacks the power to intrude with uniform law if it sees good enough reason to do so. Demanding that Congress pass more explicit statutes in order to blot out state experimentation in areas of traditional regulation is not inconsistent with the belief that Congress ultimately does have that power. This is a moderate approach to federalism that appreciates that uniform law may be necessary, but still values decentralized lawmaking. It enforces federalism values by requiring Congress to go through the exercise of consciously considering whether to deprive the states of the room to choose their own policy preferences.

ADDED: Here's a link to the text of the case, Gonzales v. Oregon.

Assisted suicide and federalism.

Here's the AP report on the physician-assisted suicide case that comes up for oral argument in the Supreme Court today:

In 1997 the court found that the terminally ill have no constitutional right to doctor-assisted suicide. O‘Connor provided a key fifth vote in that decision, which left room for state-by-state experimentation.

The appeal is a turf battle of sorts, not a constitutional showdown. Former Attorney General John Ashcroft , a favorite among the president‘s base of religious conservatives, decided in 2001 to pursue doctors who help people die.

Hastening someone‘s death is an improper use of medication and violates federal drug laws, Ashcroft reasoned, an opposite conclusion than the one reached by Janet Reno, the Clinton administration attorney general.

Frankly, I think this is an easy case (for federal supremacy), but it's a hot-button issue, so it will be interesting to see what is said -- especially by the new Chief -- at the argument.

The NYT has this editorial:

[T]he Court of Appeals was right to resolve it more simply, through a careful interpretation of the Controlled Substances Act. Mr. Ashcroft claimed that the law gave him the power to overrule Oregon's assisted suicide policy. But when Congress passed the act, it clearly intended to prohibit ordinary drug abuse, not to set out a federal policy on assisted suicide....

In his zeal to stop assisted suicide, Mr. Ashcroft, a self-described legal conservative, turned his back on two principles that are sacred to legal conservativism. First, he refused to strictly, or even accurately, construe a Congressional statute. Instead, he inserted meaning in it that did not belong there, giving himself power that he should not have had. Second, he ignored conservative dogma about deference to the states, especially on matters like regulating medical practice, a core state concern.

There is some appeal to the idea that the courts ought to narrowly construe broadly written federal statutes where the states have undertaken specific policy experiments in areas of traditional state concern (such as health). (I have a forthcoming article that sees Justice O'Connor's dissenting opinion in the medical marijuana case as suggesting this new approach to preemption.) This might seem like a good idea, but to be principled, you can't turn it on and off. The NYT likes assisted suicide and reviles Ashcroft's conservatism, but if this is to be the approach to federalism, it would have to apply even when you loathe the state's policy and love the federal law. I can't help thinking that the NYT would be back to wailing over the horrible "federalism revolution" if its policy preferences were the other way around.

UPDATE: Here's a very early report on the oral argument:

"The most natural reading of the (federal) Controlled Substances Act is ... this falls within the authority of the attorney general," said Solicitor General Paul Clement, arguing on behalf of the Bush administration....

Justice Sandra Day O'Connor immediately challenged Clement, asking if federal drug laws also prevented doctors from participating in the execution of murderers.

Justice Anthony Kennedy said he found it "odd" that the attorney general determined physician-assisted suicide to be an abuse of drug laws, when the state of Oregon strictly limited how the drugs could be administered and in what cases.

"I don't think it's odd," Clement replied, noting that federal laws regulating drug use have been in place for more than 90 years.

ANOTHER UPDATE: Here's more on the oral argument:

"The practice of medicine by physicians is an area of traditional regulation by the states, is it not?'' O'Connor asked U.S. Solicitor General Paul D. Clement....

New Chief Justice John G. Roberts Jr. directed most of his questions to Oregon Assistant Attorney General Robert M. Atkinson, who represents the state. Roberts signaled skepticism when Atkinson said the federal government couldn't stop states from authorizing doctors to distribute morphine for medical use or steroids for bodybuilding.

"Doesn't that undermine the uniformity of federal law and make enforcement impossible?'' Roberts asked....

Members of the court's liberal wing joined O'Connor today in expressing skepticism about the federal government's bid to block the state law.

Justice David Souter said Clement's argument would make the attorney general the "sole authority to determine whether any state may or may not authorize assisted suicide and would do so in a way that any other attorney general can flip back and forth.'' Souter called that a "bizarre result.''

Justice Stephen Breyer told Clement that the argument against the government's case is that the Controlled Substances Act "has nothing to do with assisted suicide.''

Breyer later prodded Atkinson, without success, to draw a distinction that would allow the federal government to fight abuse of morphine and other addictive drugs but not to second-guess states that want to let doctors facilitate suicide.

Justice Anthony Kennedy, often a swing vote on social issues, called the dispute "a hard case'' and directed questions to both sides.

Clement said the Controlled Substances Act gave broad enforcement authority to the attorney general, saying ``the abuse Congress was concerned with is not solely addictive abuse.'' He pointed to the ``date-rape drug,'' a sleep medicine that some rapists have used to disable their victims.

Justice Antonin Scalia suggested he agreed with that argument, saying Congress had a broad aim when it passed the law in 1970.

"I think that assisted suicide would have been as unthinkable at the time this was enacted as prescribing cocaine for recreational use,'' Scalia said.

STILL MORE: Here's David Savage's report in the L.A. Times, which portrays Roberts as especially active:

"What's the closest analogue to this?" the chief justice asked Clement, pressing for an example of where the U.S. attorney general overruled the states and their doctors on how legal drugs are used.

Clement paused and then responded that the Food & Drug Administration had objected in the 1970s when several states allowed the use of laetrile as a cancer treatment.

"That's the FDA. What about the attorney general?" Roberts repeated.

Clement could not cite a specific example of where the attorney general had overruled the state medical authorities on the use of prescription drugs. Roberts' question highlighted that Ashcroft was claiming a new power to regulate medical practice.

Oregon state lawyer Robert M. Atkinson picked up on that point, saying that "for the first time in our history ... a single, unelected federal official has decided what is accepted state medical practice."

But Roberts also challenged Atkinson's claim that state authorities could ignore the federal drug laws.

Suppose one state decided that it would permit people to obtain morphine from their doctors because "it makes people feel better," Roberts said. "Doesn't that undermine the effectiveness of the federal law? How is the federal government supposed to enforce its prohibition" on abusing morphine if one state permits it? he asked.

EVEN MORE: The Linda Greenhouse article in the NYT about today's argument doesn't even mention Roberts. [MORE: The longer version of the article at the link now does mention Roberts at the end, but not in connection with the suicide case.]

Plaidgate, an update.

Law Dork -- who's studying for the bar, so give him a break! -- got swept up unwittingly into what I'm calling Plaidgate. I've been trapped in the Plaidgate foofaraw since Thursday, myself, so I appreciate his insight:

No, all public discussion of important issues shouldn't be on this level, but some, it seems to me, should -- and always has been. From Mark Twain to Chevy Chase to Chris Rock, not everyone will find humor about public figures to be funny. That does not, however, make it a gay-baiting whisper campaign.

UPDATE: Plaidgate is noticed by Instapundit ... and The Washington Post. I guess it's a loud plaid.

AND: Let me say, in case you're only reading this post, that I didn't write that the NYT is trying to tell us they believe Roberts is gay, only that they knew what they were doing when they called attention to "Peppermint Patty" and lined up the pictures they way they did. I think they found it amusing, just as newspaper editors found it amusing to frame photographs of John Ashcroft with that bare-breasted statue hovering over him. The NYT layout of photographs on any page is very well-thought-out -- and beautifully done, one of the best reasons to subscribe to the paper version, as I do. Most people reading my comment are just looking at the on-line slideshow. I was describing the way the top of a two-page spread looked. I stand by my opinion that they deliberately tried to make him look gay. Obviously, they also have total deniability, so you don't have to point that out to me again.

Thanks and goodbye, Justice O'Connor.

I feel a little guilty about jumping into all the speculation about who's going to replace Sandra Day O'Connor on the Supreme Court without going through a stage of respectful celebration of the grand judge.

Was that wrong? Is it like reacting to news of your husband's death by talking about your dating prospects? Or is it a healthy focus on the future? Or is it just exactly the response the Justices themselves have earned by holding their seats so long and not giving us the new-Justice experience often enough?

But do I feel like celebrating judges? I have spent my entire professional career trying to understand the writings of Justice O'Connor, who became a Supreme Court Justice in 1981, the year I graduated from law school. I remember having a conversation with my father about President Reagan's promise to appoint the first woman to the Supreme Court. Even though I hadn't been a Reagan supporter, I believed the promise. My father, who seemed to think it was his job to teach me to be cynical, assured me Reagan was going to appoint William Bradford Reynolds. I was glad to have a woman Justice at last -- and simultaneously, to beat my father (and his cynicism) in an argument.

When I started teaching law school, the first case I spent a lot of time thinking about, as I developed an interest in federalism, was the 1983 case of Michigan v. Long, for which O'Connor wrote the majority opinion. (Long is a case that presages Bush v. Gore: despite the dissenting Justice's pleas for federalism-based deference to state courts, the Court finds reason to review and reverse.) I have spent many, many hours poring over O'Connor opinions: she was the key voice in the Court's writing about federalism in the early 90s, before federalism became a more central concern for the Court.

Three cases that were important in the development of the Supreme Court's federalism and written by O'Connor were in New York v. United States (1992), Gregory v. Ashcroft (1991), and Coleman v. Thompson (1991). Coleman begins with the line: "This is a case about federalism." (It should be noted that Gregory, the oldest of this trio of cases, cites and relies on the ideas in Michael McConnell's brilliant article Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484 (1987), just one of the many reasons McConnell belongs in the seat O'Connor is vacating.)

But I've spent too much of my life puzzling over O'Connor opinions to go into celebration mode. I like all the Supreme Court Justices well enough. I have defended each one of them in turn when I've heard them scoffed at or criticized too sharply. They have a hard job, and they do it diligently for the most part. But they must love their work, for whatever reasons, to keep at it as long as they do. They are human beings, and we need to rely on human beings to do the work of government. The Justices, like all human beings, have their weaknesses, and I assume one reason they hold their jobs as long as they do is that they enjoy the power and the prestige. Instinctively, I resist heroizing people who have that much power. We need to watch the powerful closely to see if they abuse their power. It's just not in me to love and admire these people. My thoughts about a retiring Justice are about the work that he or she did. I've been reading and writing and talking about this person's writings for years, and now the final case has been written. The oeuvre of Sandra Day O'Connor is complete.

I was struck by this article in Reason, interviewing various people about who their "favorite Justice" is. (Those who clerked for a Supreme Court Justice and picked "their" Justice -- well, isn't that like having your favorite song be the song that was playing the first time you had sex? It's just not information for me about whether it was a good song. But how nice for you.) Reading the Reason article, I realized that it doesn't come naturally to me at all to think in terms of a "favorite Justice." I'd be hard pressed to tell you who appeals to me the most in the current group or in the larger historical group. There isn't enough direct expression of an individual in a Supreme Court opinion to reach out to me and win favor for the person. And there really shouldn't be. The opinions represent groups and are written to interpret and accord with texts. One can discern a certain style of reasoning in each of the Justices, certain sympathies and weaknesses, and these things are helpful in understanding the cases, but in the end Supreme Court Justices are pretty gray characters.

Still, Sandra Day O'Connor was one of the most colorful. I loved reading the very colorful story of her life growing up on a cattle ranch. I'm sure she's a fine person and I appreciate the work she's done for us. So thanks and goodbye, Justice O'Connor.

The racial side of the filibuster controversy.

Lawprof Steven Calabresi has this piece in the new Weekly Standard:

Why are Senate Democrats so afraid of conservative judicial nominees who are African Americans, Hispanics, Catholics, and women? Because these Clarence Thomas nominees threaten to split the Democratic base by aligning conservative Republicans with conservative voices in the minority community and appealing to suburban women. The Democrats need Bush to nominate conservatives to the Supreme Court whom they can caricature and vilify, and it is much harder for them to do that if Bush nominates the judicial equivalent of a Condi Rice rather than a John Ashcroft.

Conservative African-American, Hispanic, Catholic, and female judicial candidates also drive the left-wing legal groups crazy because they expose those groups as not really speaking for minorities or women. They thus undermine the moral legitimacy of those groups and drive a wedge between the left-wing leadership of those groups and the members they falsely claim to represent.

Take Janice Rogers Brown, who won reelection to her state supreme court seat with a stunning 76 percent of the vote in one of the bluest of the blue states, California. Or take Priscilla Owen, who won reelection to the Texas Supreme Court with a staggering 84 percent of the vote in Texas. It is Brown and Owen who represent mainstream opinion in this country--not the Senate Democrats who have been using the filibuster to block their confirmation to the federal bench. If Brown or Owen were nominated to the Supreme Court, the record suggests she would win the ensuing national contest for hearts and minds. Best of all for conservatives, Senate Democrats would be forced by their left-wing interest groups to go down fighting these popular minority and female nominees. At a bare minimum, Republican Senate candidates would acquire a great issue for 2006.

Thus the driving force behind the Democrats' filibuster of conservative minorities and women is political--driven by a desire to protect the party's advantage with minority and women voters and cater to left-wing interest groups. Democrats are also driven in part by their odd belief that "real" African Americans and Hispanics and women cannot be conservative.

These are strong charges. The other side of this coin is that Bush may nominate minorities precisely to create this dissonance for the Democrats. There is no end to the complexity of the two parties' use of race as they fight for power. It's a shame, but it's reality, and we should be ready to look at all sides of it. Calabresi is participating in the struggle from one side. He has some good points, of course, but he's not standing back and trying to describe the whole complex struggle.

Senator Feingold lectures at the Law School.

The topic: "Upholding an Oath to the Constitution: A Legislator's Responsibilities." Russ Feingold spoke about his devotion to the oath he took as a senator to uphold the Constitution and the second oath he took for the Clinton impeachment trial. Feingold was the only Democratic senator to vote against the motion to dismiss the impeachment. He applied a legal standard to the motion and had to vote the way he did because he could not say that there was no chance of proving the charges against the President. Democratic senators admitted to him in private that he was right. "It was a vote where I tried to move beyond partisanship."

Feingold talked about his campaign finance reform law, which he cared about because he was "tired" of hearing that politics was "about money, not ideas." He reminisced about the court case, challenging the constitutionality of the law, and described sitting through a nine-hour deposition conducted by the great First Amendment lawyer Floyd Abrams. Abrams began his questioning praising Feingold to his face for his reputation for upholding the Constitution. As Feingold put it later in the question session, Abrams spent the nine hours "trying to confuse me." I'd say the praise that he started off with was a deliberate effort to unnerve the senator. Feingold could hold his ground, he thought, because he believed his position was consistent with his oath to protect the Constitution, because "we spent a great deal of time crafting that bill" to avoid constitutional violations. He respected the Supreme Court's precedent on campaign finance regulation, even to the point of regretting a vote he had cast early on in his career about amending the Constitution to overrule Buckley v. Valeo. The First Amendment should not be diminished, he thought, even by the amendment process.

He spoke about the Patriot Act and his anguish at the speed with which it was pushed through the Senate, beginning with a closed door hearing on October 3, 2001. After Feingold voiced his civil liberties concerns, Attorney General John Ashcroft telephoned him, and, in that conversation, Ashcroft, according to Feingold, agreed that Feingold had raised many reasonable concerns, but that he still wanted his support. Later, according to Feingold, "the White House overruled Ashcroft."

[NOTE: The remainder of this post is an attempt at reconstruction of text that disappeared mysteriously on April 23, 2005. To do the reconstruction, I went back to my handwritten notes and also used two paragraphs that were quoted on Instapundit.]

Feingold objected to this sort of "legislation on the fly." Many members of Congress admitted to him that they had not read the text of the Patriot Act. A procedure was adopted that barred amendments, and the text had not gone through the Judiciary Committee, so there had been no chance to call attention to constitutional problems. Feingold decided to oppose unanimous consent because he "felt he had no choice" and he needed to uphold his oath to the Constitution. He described a difficult conversation he had on the floor of the Senate with Tom Daschle as "suffocating. " Feingold offered his amendments, and Daschle oppposed him, in what Feingold called a "frightening scene." With deep disapproval, Feingold quoted Daschle as saying "My argument is not substantive, it's procedural."

In his work on the Subcommittee on the Constitution of the Senate Judiciary Committee, Feingold said he votes against amending the Constitution. He thinks it is better to craft legislation so that it is constitutional (as in the case of campaign finance reform) or simply to reject the amendment as not important enough (as with flag burning).

He ended his speech with the observation that it has been complex to keep his oath to uphold the Constitution and that he has "struggled constantly to get it right."

He took a few questions from the audience. The first was from Professor Alan Weisbard, who asked if a legislator has a duty to interpret the Constitution independently from the courts. Feingold said that there was an obligation not to pass the law if it was clearly unconstitutional, but that he didn't need to be certain or to predict what the Court would say. He could vote for the law as long as he had a good faith belief it would be upheld. "The presumption is it's constitutional unless somebody tells me it really can't fly." This seemed odd to me and made me rethink his opposition to the Patriot Act. Where was the presumption? Must it not be that he opposed the Patriot Act as a matter of policy?

My colleague Jim Jones asked him what he does if he's convinced the Supreme Court has gotten a decision wrong. Feingold said he tries to craft the legislation to avoid the constitutional problems and that he also looks to elections to change who is on the Court. Feingold seemed to be thinking again of the campaign finance reform law, which I don't think was what Jones had it mind. Jones was, I think, concerned about the perniciously wrong cases, like Plessy v. Ferguson. With some more prodding, Feingold said he said he believes the cases that permit the death penalty are wrong, but that the new death penalty case (making it unconstitutional to execute a person who committed his crime as a juvenile) is an "exciting example of how the Constitution can evolve." Jones, still not satisfied, asked whether he was just counting the Justices' votes, and Feingold said he mostly had to accept that they are right, for example, with the Line Item Veto case. "I respected it ... that's the normal situation," he said, but he acknowledged that there are "extreme situations" he'd treat differently. He then joked that this really was like being back in law school, which drew a big laugh from the crowd.



I would never have said this out loud, but I couldn't help thinking how interesting it was that Feingold shaped his whole lecture around the sanctity of the oath, when just a few days ago he announced that he was getting a divorce, his second. Was I the only one who thought how strange it was to hear a man piously invoke a passionate fidelity to an oath when he had -- so conspicuously -- gone back on the marriage oath twice?

But I like Senator Feingold. I do think he's a good man. I don't presume to know what happens to people in their marriages, and I am divorced myself. Nevertheless, he could have discussed his devotion to the Constitution from some perspective other than the fact that he'd sworn an oath. Taking an oath to the Constitution, after all, is not the strongest reason to support it.

UPDATE: Many of the commenters think it isn't fair for me to compare marriage vows and the oath to support the Constitution. And one commenter asks the interesting question: "What on earth can account for the view that amending the constitution is wrong but that allowing the constitution to 'evolve' under the watch of political judges (with no Constitutional basis for this evolution) is preferable." Here's the answer I give in the comments:

Thanks for making me think about that! There really is an answer. The idea is that it's terrible to amend the Constitution because you're taking away something that's there. We've been revering the First Amendment (to take the prominent example) all this time, and it would be unseemly to use political power to remove it as an obstacle. But if a court would just say, that obstacle you imagine really doesn't exist, then you haven't wielded political power against the revered document. Of course, [Feingold] still supports using political power to stock the courts with people who will perceive the evolution he wants them to perceive. It all just works so much better if you can get a judge to do it for you. Plus it is very hard to amend the Constitution, so if you try, you'll probably fail, and your enemies will rake you over the coals the whole time -- for wanting to change the Constitution. Acting through the courts is so much more politically palatable. And the beauty of it is that you can continue to lavish praise on yourself for your devotion to the Constitution.

Let Oregon be Oregon?

Here's Linda Greenhouse's analysis of the Oregon assisted suicide case, which the Supreme Court announced yesterday it would hear. (The Ninth Circuit case to be reviewed was decided back in May, and I wrote about it at the time here.) Greenhouse (along with others) has written so many pieces decrying the Supreme Court's "federalism revolution" that it's interesting to see how she (and others) will write about a case where deferring to the states upholds a policy choice that is as far away from social conservatism as you can get. By the same token, it will be interesting to see if conservatives can stick to their federalism values and will be able to entertain the notion of letting Oregon be Oregon.

In the administration's view, suicide is not a "legitimate medical purpose" under regulations that carry out the federal Controlled Substances Act. Consequently, the administration will argue before the Supreme Court, as it did unsuccessfully in the lower federal courts, that doctors who prescribe drugs for committing suicide violate the federal law and are subject to revocation of their federal prescription license. The license applies to broad categories of medications and is necessary, as a practical matter, for a doctor to remain in practice.

Yet the case presents more of a challenge for the liberal side than for conservatives. Given the existing case law, the basis for federal power over prescription drugs is very strong, and it's hard to think of a way to pry drug law enforcement out of the grasp of federal power, even if you do believe that state experimentation in this area is a good idea. The same sort of federalism problem is also present in the medical marijuana case that the Court is already considering.

Liberals have strongly supported strong and pervasive federal legislative power for a long time. It is hard to think of how they can back off from that commitment simply because they approve of a policy a particular state has devised in a given instance. I think, to be principled, they should denounce the administration for taking the position it has with respect to enforcing the drug laws and stop there. Here's Greenhouse:

Although the justices have agreed to review the case, the "who gets to decide" argument on the merits may be a hard sell. The court has been notably deferential to the states, and eight years ago, in another assisted-suicide case, it appeared to invite continued state experimentation.

So here's the liberal talking point: the conservatives on the Supreme Court have been deferring to the states and they specifically encouraged state-experimentation in this area, so if they fail to follow through and uphold Oregon's experiment, they are unprincipled and result-oriented.

Don't believe it! The Supreme Court has upheld federal regulatory power quite consistently, and the deference it has shown to the states has only been in discrete areas. Congress's power to regulate all components of a national market -- such as the market in drugs -- is quite solidly established. It will be hard to find a way to back off from that. I support the Court's federalism decisions and I approve of allowing the states to experiment as Oregon has, but I don't see a good way, considering the precedents, to disempower the Attorney General in this decision about how the Controlled Substances Act ought to be enforced.

Note: The Ninth Circuit case is named Oregon v. Ashcroft, and it was Attorney General Ashcroft who announced the policy to lean on Oregon's doctors. But now Ashcroft is gone, so it will be Alberto Gonzales who will have his name on the case: Gonzales v. Oregon.

The marijuana case: a great test of law and politics.

Tomorrow the Supreme Court hears oral argument in Raich v. Ashcroft, the medical marijuana case, which sets the federal government's interest in comprehensive regulation of the marijuana market against the state's interest in controlling small, isolated uses of marijuana. In the case at hand, California would like to be free to legalize the use of marijuana for medicinal purposes.

Generally, judicial and political liberals have opposed the Supreme Court's enforcement of constitutional federalism, which limits the reach of federal governmental power and leaves room for individual states to experiment with their own policies, suited to local conditions and local political preferences. But some state policy experiments are appealing to those who did not like it when the Supreme Court used ideas about federalism to strike down the Gun-Free School Zones Act and part of the Violence Against Women Act.

So it will be interesting to see the response of those who have harshly criticized the majority's recent federalism decisions and have professed abject deference to Congress and the Executive branch about federalism matters. From a liberal perspective, one might want to think: I support the enforcement of federalism limits when federalism is really a stand-in for individual rights, and I support strong federal government power when the federal policy in question is really a stand-in for individual rights. But it is rather hard to translate that instinct into sound constitutional law.

Conservatives face a dilemma too, if their conservatism is the kind that puts great importance on strong anti-drug enforcement. But conservatives who take the libertarian position on drugs can happily seize a two-fold opportunity: they can demonstrate a principled fidelity to constitutional federalism and, at the same time, improve federalism's reputation among liberals.

My earlier posts about federalism and medical marijuana are here and here .

Two articles about politics and art.

As I've said before, politics and art usually means bad politics and bad art. A lot of people favor keeping religion separate from politics (with good reason!): I favor keeping that other sublime thing, art, separate from politics. Every once in a while there's a Guernica to provide the counter example. But Guernica is to art and politics, as the Reverend Martin Luther King, Jr. is to religion and politics.

So these two articles caught my eye this morning:

The High Art of Highbrow Protest: Antiwar hacks invade New York, by Eric Gibson in the Wall Street Journal

Caution: Angry Artists at Work, by Roberta Smith in the New York Times.

Both articles cover artists reacting to the Republican conventioneers coming to New York City. Be sure to click over to the Smith article if only to see the reproduction of the painting of John Kerry that makes me give thanks once again that the English language contains the word "bathetic." But most of Smith's lengthy article is a round-up of the various art shows in town that have snagged a big write-up in the Times by being about the election.

Gibson's much shorter piece refers briefly to a few of these shows and is, to my liking, much more barbed:

There is ... a deadening uniformity of manner and outlook. The same bugbears appear over and over: Bush, Cheney, Rumsfeld, Ashcroft, the Patriot Act--even the supposedly hawkish media. The work fairly seethes with dire assessments of our current condition, expressed in trite cliché.

The medical marijuana case.

The Supreme Court took cert. in Raich v. Ashcroft, the 9th Circuit medical marijuana case. Can Congress use the commerce power to criminalize the noncommercial cultivation and possession of marijuana? Many persons have gone to prison for violating the Controlled Substances Act. It is hard to believe that, in general, the Court is going to say that only the states can regulate homegrown, home-consumed marijuana. But what about this more limited category of homegrowers: those who use marijuana pursuant to California's Compassionate Use Act?

Is there a way to segment off this group of homegrowers and place them outside of Congress's reach, while still leaving recreational homegrowers subject to the federal law? To some extent the commerce power depends on whether the regulated activity is commercial, but if anything, medical marijuana is more commercial than recreational marijuana: doctors have a key role under California's Compassionate Use Act in creating the state law entitlement to use marijuana and certainly the practice of medicine is a commercial enterprise. So how can you set medical marijuana outside of Congress's reach without having also to leave recreational homegrown marijuana to the states?

The 9th Circuit solved that problem by characterizing the homegrown medical use as separate from the commercial market in marijuana, both "the broader illicit drug market -- as well as any broader commercial market for medicinal marijuana." The idea is that a home-growing, recreational user could quite easily turn to selling his crop, and the need to control the market justifies reaching him, but the home-growing medical user does not pose a similar risk, so Congress cannot similarly justify looping the medical patient into the large federal scheme to control the sale of marijuana. A key precedent involves a farmer who grew more than his allotment of wheat, but planned to use the wheat on his farm and not sell it. The Court saw the wheat as "overhang[ing] the market": the farmer might change his plan and sell the wheat. Thus, Congress, pursuant to a plan to control supply in the wheat market, could also regulate the home-consumed wheat. Similarly, the Controlled Substances Act means to control the market in marijuana, and people who claim their crop is for home use might turn around and sell it, so controlling their production is a legitimate part of controlling the market. Will the Court say the medical users' supply does not overhang the market? Arguably, these users are off in a different sphere of life where they are not tempted to become dealers.

Surely, we feel much more sympathetic to the seriously ill person who wants to use marijuana for medicinal person that for the ordinary person who simply wants to enjoy himself, but why should that difference affect the relative power of Congress and the states? We might say that the Compassionate Use Act is a particularly worthy or useful policy experiment taking place at the state level, but do we want the scope of Congress's power to depend on a judicial assessment of the value of the state's policy? I'm inclined to think that if the recreational home-growing home-user is subject to the Controlled Substances Act, so is the home-growing home-user with a medicinal purpose. As a matter of pragmatism, it is too late to say the recreational user cannot be reached, so the challenge will be to find a way to distinguish between these two motivations for using marijuana in terms that somehow express something about commerce. That should be hard to do, but the 9th Circuit has put a theory in writing that the majority of the Justices may decide to adopt.

A similar case that may makes its way to the Court is Oregon v. Ashcroft, another 9th Circuit case about the Controlled Substances Act and federalism, dealing specifically with Oregon's Death With Dignity Act. I describe and discuss that case here and here.

ADDITIONAL POINT: I do realize that in the wheat farmer precedent linked above (Wickard) that the Court also noted that the home-grown wheat supplied a need that the farmer would have otherwise needed to enter the market to meet, but the point I've noted plays an equally important role in the Court's reasoning. This additional point is also relevant to the medical marijuana problem, though I omitted it in my original discussion for the sake of brevity. A person who uses home-grown marijuana for medicinal purposes is serving a need that he or she would otherwise have enter the market to meet. Either this person would buy marijuana (the fact that the market is illegal is irrelevant constitutionally) or would buy the synthetic marijuana substitute Marinol or would buy some other product for pain relief. So home-grown, home-consumed marijuana has a substantial effect on interstate commerce just like the home-grown, home-consumed wheat in Wickard. The key difference is the commercial/noncommercial distinction developed in the recent commerce clause cases (Lopez and Morrison). The farm in Wickard was a commercial enterprise and the medical marijuana patient is not engaged in a commercial enterprise. But if that is the reason for denying Congress power, than the home-growing recreational consumer must also be free of federal regulation. My point is: how do you distinguish Wickard for the medical purpose and not for the recreational purpose? The only answer I've seen is the one given by the 9th Circuit.

That Calabresi remark about Hitler and Mussolini.

Prof. Yin invites me to comment on "Judge Calabresi's intemperate remarks" at an American Constitution Society convention (paraphrased as "President Bush’s rise to power was similar to the accession of dictators such as Mussolini and Hitler"). He says he's asking me because I've written before about wanting rational, civil public discourse and because I have not come out in favor of either candidate--I'm genuinely undecided. I kind of think he's asking for my opinion partly because I asked for his opinion of the "Joe Schmo Show," which seems so much more frivolous.

You might well wonder why I didn't jump at the Calabresi remark before. Maybe it's because I've gotten used to hearing remarks like it. I've certainly heard lawprofs (and Calabresi was a lawprof) call Bush a "war criminal." I've posted a photograph I took of a flyer seen around campus showing Ashcroft with a Hitler mustache. And certainly when Bush v. Gore came out, I heard endless denouncements of it from lawprofs who were really exercised about it in a way that struck me as unhinged or that would have struck me as unhinged if I weren't already used to hearing people heating up the atmosphere with passion and anger but still continuing to do the conventional law school work in a competent, sensible way. I don't like it, but I'm pretty jaded about it. Like Prof. Yin, I think that style of argument (like the Moore style of documentary) appeals to people who are already committed to your side and makes other people not want to listen to you at all. People interested in rational arguments will choose not to engage with you, which you might wrongly read as agreement, leading you to become complacent about the correctness and persuasiveness of your beliefs. But you miss the opportunity to persuade people who don't already agree and you lose touch with how they think about things. You may wind up thinking that people who don't agree with you must be ignorant or ill-willed. Now you're in the end stage where you're calling people stupid and fascist.

Was there any sense to the larger point Judge Calabresi was making? Shorn of overstatement, his point (as I can gather it from the news article) is: since Bush barely made it into office, he ought to have been especially restrained in his exercise of power; Bush has nevertheless acted quite boldly, in a manner similar to FDR, who was elected by a wide margin; therefore, everyone, regardless of their usual political preferences, should want to defeat Bush in order reassert democracy. Let's think about this argument in light of 9/11. Should Bush have said, I'm sorry, but since the election that led to my Presidency ended in a dead heat, I need to acknowledge the principles of democracy by acting with restraint? The election was in fact a dead heat, but there could only be one President. The process ended with Bush holding the office, and at that point he was bound to shoulder the great responsibilities of the office. Democracy doesn't demand that the power of the Presidency rise and fall with the margin of victory. That would be quite dangerous. I could see arguing that Bush had a special responsibility to seek bipartisan support, but it seems to me that he got that support for the two wars, the Patriot Act, and so forth. Yet even if he hadn't, if he had determined that bold action was required in spite of partisan opposition, and he acted boldly, he would not deserve to be voted out of office for subverting the principles of democracy, only to be criticized for not doing a better job of obtaining bipartisan support, which would be an appropriate factor in anyone's decision to vote to reelect him. It makes little or no sense to impose some sort of special punishment in the name of democracy, based on what happened in the past, because there's nothing more democratic than voting for the candidate who is most likely to do what is best in the coming Presidential term.

I can't help thinking that Judge Calabresi and his American Constitution Society audience would not have taken the same position about Presidential power if the election had fallen out the other way and Gore had become President.

UPDATE: My response to the judge's apology appears here.

"Death with Dignity," "Compassionate Care," and federalism.

The NYT, reporting reporting on yesterday's Oregon v. Ashcroft case (which I discussed at some length here), quotes Dr. Greg Hamilton, of Physicians for Compassionate Care, a group opposed to doctor-assisted suicide:

"It's amazing when a federal court allows any state to nullify federal laws ... Vulnerable people in the state of Oregon are deprived of the protections available to people in 49 other states."

It would be amazing if a federal court recognized a power of a state to "nullify federal laws," but of course that didn't happen. If the federal law, the Controlled Substances Act, had clearly stated its intent to bar doctors from prescribing drugs to enable a person to commit suicide, the court would have recognized that federal law preempts state law. The problem was banning doctor-assisted suicide by virtue of the opinion the Attorney General alone, rather than having a decision thought through by Congress. It's obvious that Congress never went through the exercise of deliberating about physician-assisted suicide, and it's also obvious that the people of Oregon, acting democratically through a ballot measure, did think about this specific subject and reach a decision. The question is whether Attorney General Ashcroft should be permitted to use the Controlled Substances Act, which Congress passed while contemplating other sorts of drug problems, to impose his ideas about physician-assisted suicide over the decision reached by Oregon. Nothing prevents Congress from taking up the issue now and providing the necessary clear statement of intent to prevent doctors from prescribing drugs for suicidal purposes, nothing except all the political disincentives. If the national legislature cannot get up the nerve to address this question, why shouldn't the view adopted by the people of a state prevail?

Dr. Hamilton expresses concern that the people of Oregon have a law different from the laws in all the other states. He characterizes the structure of federalism as a lack of protection for people, as if uniformity of law is in itself beneficial. But it is traditional in American constitutional law to regard federalism as a device to protect individual liberty. Why should we think that there is a loss of liberty if the law varies from state to state, rather than to think that the ability of one state to break away from the others and try something new holds some promise of bringing new benefits to people? Hamilton's group has a policy preference, and he may very well have the better answer about physician-assisted suicide. But to analyze the federalism problem, we need to picture it the other way around: what if all the states permitted doctors to prescribe drugs for patients to commit suicide and one state decided to ban it? Would you still believe in the benefit of requiring the whole country always to move in one hulking pack? Permitting one state to engage in a policy experiment is not "amazing." It is fundamental consitutional law and a time-proven way to generate good policy (though it necessarily leaves room for bad policy too).

If the policy adopted by Oregon is really so bad, presumably Hamilton's group can convince Congress to make a clear federal law. If he can't do that, the shortcut of accepting Ashcroft's view of the matter should not be enough to override the policy the people of Oregon adopted.

Doctors, federalism and the Controlled Substances Act.

Today, the Ninth Circuit issued an opinion in Oregon v. Ashcroft rejecting the "Ashcroft Directive," the Attorney General's position that a doctor using a controlled substance to assist a suicide violates the federal Controlled Substances Act and faces criminal prosecution and the loss of prescription privileges. The court tapped federalism values as it made room for Oregon's experiment under its Death With Dignity Act.

In Washington v. Glucksberg, a 1997 Supreme Court case cited in today's opinion, Justice O'Connor wrote a concurring opinion, agreeing that there is no federal due process right to physician-assisted suicide and arguing for the narrow interpretation of constitutional rights because the states were actively serving as "laboratories," working through the complexities in this complicated area of policy. The laboratory that is Oregon subsequently produced the Death With Dignity Act, and the Ninth Circuit cited O'Connor's Glucksberg opinion as it showed great respect to Oregon's policy work today.

The court also cited another Ninth Circuit case about doctors, federalism and the Controlled Substances Act: Conant v. Walters (2002), which protected doctors who recommend marijuana for medicinal purposes under California's Compassionate Use Act. In Conant, the court saw the states as having the central role of supervising doctors and looked askance at the federal government's attempt to use the CSA to horn in on the state's area of responsibility. The Ashcroft Directive at issue in today's case also involved the federal government's use of the CSA to prevent doctors from carrying out the state's ideas about good medical practices. Conant involved the recognition of the doctors' First Amendment right to communicate with their patients, though Judge Kozinski's concurring opinion relied much more on federalism values. The case today saw a special role for the states with respect to doctors, and based on that traditional role, it chose a narrow interpretation of the CSA to leave that traditional role untouched.

In opting for narrow statutory interpretation to serve the interests of federalism, the Ninth Circuit cited the 1991 U.S. Supreme Court case, Gregory v. Ashcroft. Gregory stands for the proposition that federal statutes will not be read to change the traditional federal-state balance unless they make a clear statement of their intent to do so. (John Ashcroft was a party to that case as a state governor, successfully avoiding the application of the federal law against age discrimination to state judges.) Today's decision uses the Gregory presumption in favor of the traditional federalism balance and finds enough unclarity in the Controlled Substances Act to justify reading the CSA not to permit the Justice Department to punish doctors who are engaged in the practice of medicine within the standards set by state law.

One judge (on the three-judge panel) dissents. Judge Wallace relies heavily on the principle that courts should defer to the Attorney General's interpretation of the act he has the duty to enforce. Let Congress change the statute if he's wrong, or let the people elect a different President and bring in a new Attorney General. (Note that Clinton's AG, Janet Reno, took the position that the CSA did not reach the Oregon doctors). The majority rejected that sort of deference though, again, on federalism grounds. It cited the 2001 U.S. Supreme Court case Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, which rejected the Army Corps of Engineers' interpretation of the Clean Water Act to apply to nonnavigable streams. In the Solid Waste case, though, the Supreme Court wrote, "Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result." The problem there was that Congress may have reached the end of its Commerce Clause power if it meant to reach isolated wetlands. But there is no question that Congress could reach doctors in the practice of medicine under the Commerce Power. The Solid Waste Court premised this departure from the usual deference on a "prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority." That is not true in the Oregon case.

The Solid Waste court did also say that its concern about a statute reaching the edge of congressional power was "heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power." And that is the issue the Ninth Circuit is relying on. So a key question that should face the U.S. Supreme Court very soon is whether to accept this idea that medical practice is a special area of state power to be protected from federal intrusions. The Ninth Circuit has taken the federalism cases of the the conservative Supreme Court and applied them to protect the autonomy of states like California and Oregon that are engaged in the sort of policymaking that tends to bug the hell out of conservatives.

Unlike individual constitutional rights, which can be found to extend to some substantive areas but not others, constitutional federalism protects state autonomy, and the state may do all sorts of different things with that autonomy. If you think you like (or don't like) federalism, you may want to rethink it if a state starts to do something you don't like (or do like). To want to do things with federalism, judges have to want to take the good policies and the bad, to trust local decisionmaking--unless they are reckless enough about their appearance of neutrality to turn their support for federalism values on and off, depending on whether they approve of what a particular state has done.