Jonathan Adler, a constitutional law professor at Case Western University in Cleveland, said in a statement that today's decision "is important because it prevents a federal agency from intruding upon traditional state functions without express congressional authorization."Professor Adler is saying the decision basically affirms a states' rights position. Generally, conservatives favor limiting federal authority, and a moderate conservative, Justice Kennedy, wrote today's decision. What's interesting is that the dissenters were the three most conservative justices, Scalia, Thomas and Roberts (admittedly, we don't know Roberts is conservative, though that that's my presumption until proven otherwise). Thomas, for example, dissented in the case last year that held that the federal government can prosecute medical marijuana use, even in states which allow its use. Interestingly, Scalia voted with the majority in that case, suggesting that he's not as much a proponent of states' rights as might be thought.
I don't find the liberal justices' changing perspective between the medical marijuana and assisted suicide decisions to be inconsistent. Last year's case involved an existing federal law that explicitly banned the usage that the state law permitted. Today's decision concerned a broad interpretation of an existing federal law -- the law was silent on the issue of assisted suicide, and on physicians prescribing drugs for that purpose. In other words, if one voted against the use of medical marijuana in the presence of a federal law with an explicit conflict, I don't see a problem with voting for physician assisted suicide given a federal law without an explicit conflict. Incidentally, O'Connor and Rehnquist joined Thomas in dissent in the medical marijuana case.
So in comparing how the votes line up in the two cases:
- Kennedy, Stevens, Souter, Ginsburg, Breyer -- the "explicitness" makes a difference in how the cases are decided.
- O'Connor -- states' rights win in each case. In the earlier decision, she "would not have voted for the medical marijuana initiative" in California, but criticized the majority for stifling "an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently."
- Scalia -- federal law triumphs each time, arguing that the federal laws were explicit each time. Scalia relies on the federal law's requirement that a prescription have "legitimate medical purpose," stating, "If the term 'legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death."
- Thomas -- For the medical marijuana law, against the assisted suicide law. This seems to be the most conflicting of the approaches, and I don't see how his positions in the cases can be reconciled.
- Roberts, Rehnquist -- each only voted in one case.
