THE DEATH OF CONSISTENCY

By GARRETT EPPS

[Illustration]

This month, the Senate will begin debating a bill entitled the Pain Relief Promotion Act. From its innocuous title, one would think it was an Advil commercial. Instead, it's an attempt to assert federal control over the process of death and dying.

for the gravely ill. In fact, as opponents will note, its true purpose is to void Oregon's Death with Dignity Act, which permits willing physicians to prescribe lethal doses of medication to patients dying in pain.

The bill raises an interesting question: If it passes, will it survive the Rehnquist Court's scrutiny? Or will this conservative attempt to assert federal control over local events -- here, even over individuals' deaths -- meet the same fate that similar liberal measures have recently suffered?

The Court's Recent History Of Curbing Federal Control

The Constitution gives Congress the power to regulate interstate commerce, under the Commerce Clause. And because the states are fully represented in Congress, it generally makes sense for the political branches -- not the courts -- to decide what activity constitutes interstate commerce.

Nevertheless, the Court has recently been on a crusade against congressional power and, in several cases, it has accordingly interpreted the Commerce Clause narrowly, to constrict Congress' power. In United States v. Lopez, the Court held that Congress could not use the Commerce Clause to ban guns from school zones. And last term, in Brzonkala v. Morrison, a 5-4 majority of the Court held that the Commerce Clause did not give Congress authority to create a civil remedy for victims of gender-based violence.

Brzonkala is by far the Court's most sweeping statement of its recent, strengthened Commerce Clause doctrine. The majority sweeps aside extensive factual findings by Congress about the impact of gender-based violence on the national economy -- findings that would ordinarily support the conclusion that Congress properly invoked the Commerce Clause.

Such an impact, Chief Justice Rehnquist writes on behalf on the Brzonkala majority, is "attenuated." In other words, the problem is not that the violence has no economic impact -- it is that "[t]he Constitution requires a distinction between what is truly national and what is truly local." And to maintain such a distinction, some activity will have to fall outside Congress' power to regulate interstate commerce even despite the activity's genuine, national economic repercussions. Moreover, the Court, not the political branches, Rehnquist wrote, will draw the national/local distinction.

The Terms Of The Pain Relief Promotion Act

The Pain Relief Promotion Act amends the Controlled Substances Act, which, among other things, requires federal registration of doctors and pharmacists who prescribe drugs deemed to be controlled substances. Absent such registration, a professional is out of business -- he or she cannot prescribe or dispense many common medications.

registration would be "a matter of right where the individual or firm is engaged in activities involving these drugs that are permitted by State law." But now, the new Act, if passed, will turn the tables, and direct federal authorities registering physicians and pharmacists to "give no force or effect to state laws authorizing or permitting assisted suicide."

Thus, such state laws, rather than providing a safe harbor for doctors, as they would have done in the past, will be meaningless. And the federal Big Nurse will revoke the licenses of doctors who prescribe lethal doses of medicine to terminal patients, regardless of state law.

Precedent And The Pain Relief Promotion Act

Would the Pain Relief Promotion Act, if passed, exceed Congress' power over interstate commerce?

Some think not. Indeed, many of the same Congressional conservatives who preach about local control are now lining up to void Oregon's experiment. Senate Judiciary Chair Orrin Hatch (R-Utah), for example, was among the first to hail Brzonkala, remarking that "[t]he restoration of federalism scrutiny in our federal courts is a welcome development in the law." Yet Hatch is now a prime sponsor of the Pain Relief Promotion Act. Is Hatch's position simply hypocritical, or can it be supported by precedent?

Unfortunately, hypocrisy is probably the best explanation. The Act does contain a one-sentence "finding" that "the dispensing and distribution of controlled substances for any purpose affect interstate commerce." But records show that only fifteen patients received prescriptions for lethal drugs to end their lives in the Oregon statute's first year of operation. We cannot be sure that all of them even used their prescriptions. That is hardly the "substantial effect" on interstate commerce that the Court now requires.

Granted, in its recent opinions, the Court has said that Congress may regulate intrastate conduct when it is part of "economic activity" or involves "things . . . in interstate commerce." And the Pain Relief Promotion Act regulates a class of substances -- certain drugs -- that are made and sold as part of a national market. That provides a distinction between the Act and Brzonkala, in which gender-based violence was regulated. But it does little to distinguish the Act from Lopez, in which the Court held that Congress could not bar guns from school zones, despite the fact that guns, like drugs, are also part of a national market.

Moreover, the Pain Relief Promotion Act's bald assertion that the end-of-life decisions of fifteen Oregonians "affect commerce" seems like a masterpiece of the "attenuated" analysis Brzonkala disallowed. And it is hard to think of anything more "truly local" than the regulation of medical practice and end-of-life care.

Will The Court Strike Down The Act?

Will the Court, then, strike down the Pain Relief Promotion Act? Not necessarily. The determination of what fits the vague standard of being "truly local" is, in the end, utterly subjective. For this reason, ideology -- rather than consistency -- may win the day at the Court and the Act may survive despite the fact that precedent should doom it to failure.

of judicial El Dorado -- a mythical site that has lured jurists into a sticky morass of subjective, result-oriented jurisprudence. The swamp claimed the reputations of Chief Justice Taney, author of the Dred Scott decision that contributed to the start of the Civil War, and of the "Four Horsemen of the Apocalypse" who tried to gut the New Deal. We remember the catchphrases of earlier explorers -- "economic substantive due process," or "direct versus indirect effect on commerce" -- as slogans of illegitimate judicial politics. Does "truly local" truly have any more content?

One day Brzonkala and a future decision upholding the Pain Relief Promotion Act may stand as melancholy monuments to another Court that lost its way.

Garrett Epps is associate professor of law at the University of Oregon.

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