On Course to Federalism

January 30, 2006 • Commentary
This article appeared on Law​.com, January 30, 2006.

What a difference a year can make. Last summer, in Gonzales v. Raich, the Supreme Court upheld federal efforts to squelch a California law legalizing medical cannabis. Because the case was about constitutional limits on federal power, many Court watchers called the decision a death knell for the federalism revolution under the late Chief Justice William Rehnquist. Now, in Gonzales v. Oregon, the Court on Jan. 17 reversed course, barring federal interference with Oregon’s controversial assisted‐​dying law.

The Oregon case creates two puzzles: the votes of Justices Anthony Kennedy and Clarence Thomas. In Raich, for example, Kennedy voted to uphold federal power over California’s experiment legalizing medical marijuana. Fast‐​forward to Oregon: Kennedy wrote the pro‐​federalism opinion striking down federal interference with Oregon’s equally controversial assisted‐​suicide experiment.

In Raich, Thomas wrote a stinging pro‐​federalism dissent, attacking the federal override of California’s medical cannabis laws. But in Oregon, Thomas voted to uphold federal power.

Did Kennedy and Thomas flip‐​flop? Is “federalism” just a cover for outcomes conservative judges happen to like?

Not at all.

First, some background on the most recent decision: Gonzales v. Oregon involves an order by former Attorney General John Ashcroft targeting a controversial Oregon law (the “Death With Dignity Act”). While the act allows Oregon doctors to help terminally ill patients end their lives by handing out lethal medicine, Ashcroft’s directive warned that doctors who do so will have their licenses revoked.

The U.S. Court of Appeals for the 9th Circuit struck down Ashcroft’s order, reasoning that medical regulation is primarily a matter for states. In a 6–3 decision, written by Justice Kennedy, the Supreme Court upheld the 9th Circuit. Three justices — Antonin Scalia, John Roberts Jr., and Thomas — dissented. They would have affirmed federal power.

To see why Kennedy is being consistent in Oregon and Raich, take a closer look at Raich. There, the outcome hinged on a special rule in commerce clause cases: that the federal government can reach local conduct when doing so is “essential” to a “comprehensive” (i.e., big) federal program. In Raich, the Court ruled that banning local medical marijuana is essential to federal drug laws and therefore can survive commerce clause analysis.

To understand the majority’s opinion in Raich, you have to understand the attorney general’s briefs in that case. The attorney general strove toward one end: compiling evidence that Congress had clearly decided banning medical marijuana was “essential” to federal drug regulation.

The Controlled Substances Act, said the attorney general, spoke in no uncertain terms. Under the act, all marijuana is illegal, except in special circumstances not present in the case. And Congress had made specific findings that banning local use was key to effective drug laws. On the issue of medical marijuana, the Controlled Substances Act was super clear.

The Oregon case raised a very different question. Congress hasn’t spoken clearly about whether federal drug laws allow the attorney general to stop doctor‐​assisted suicide. Yes, the Controlled Substances Act’s vague terms could be read as a green light to the Justice Department, giving it broad power to define whether assisting suicide is medically “legitimate” and therefore legal. On the other hand, there’s also plenty of evidence that Congress was primarily motivated to stop drug addiction and drug pushing when it wrote the Controlled Substances Act — so much so that the Clinton Justice Department came out entirely differently from Ashcroft, deciding that the Controlled Substances Act doesn’t cover assisted suicide.

Faced with a murky law, the attorney general switched tacks in Oregon. Instead of relying on what Congress clearly said, as the Justice Department did in Raich, the department spent most of its ink arguing that when Congress isn’t clear, the Court should defer to the attorney general’s reasonable call.

Kennedy, however, didn’t buy it. To be sure, his opinion is crafted with the numerous hedges necessary to cobble together a diverse majority of justices, some of whom are deeply allergic to federalism. But its bottom line is obvious: Congress must speak clearly, as it had in Raich, before the attorney general can intrude into an area of traditional state regulation in a new and sweeping way.


Kennedy’s decision suggests he may turn out to be a pro‐​federalism justice of a special kind. Instead of flatly prohibiting certain exercises of federal muscle, Kennedy may prefer to enforce federalism indirectly, by putting a heightened burden on Congress when it tramples state policies.

Under this approach, people who want to expand federal power must build a clear consensus in Congress in favor of doing so. That’s not an easy task — and building that consensus therefore slows down the federal juggernaut.

That’s not the robust vision for federalism many conservatives had hoped for during the Rehnquist years. But it’s at least consistent with the Constitution’s basic assumption: that there’s some limit on federal power, and the feds can’t just do whatever they want, whenever they want.

Understood as a clear‐​statement decision, Kennedy’s vote is neither inconsistent nor incoherent. The true test of Kennedy comes later this term — in Rapanos v. United States, another case involving bureaucratic efforts to stretch federal authority to the breaking point.

Here, environmental regulators argue that they can classify any land, no matter how dry, as a wetland if rivulets of rainwater could trickle off the property and wend their way into a large body of water under federal control, no matter how far away. There’s little basis for this expansive power in the Clean Water Act, which limits federal control to “navigable” waters and land “adjacent” (next to) navigable water. If the feds win, it would vastly expand federal power over land use — traditionally a state concern.

How will Kennedy vote? If he votes to uphold expansive federal wetland regulation, then you can start calling him result‐​oriented.


While Kennedy weaved in a pro‐​federalism direction in Oregon, Thomas — the powerful pro‐​federalism dissenter in Raich — went the other way.

Thomas justified his vote based on a technicality: During oral argument, the lawyer for Oregon said he wasn’t asking the Court to overturn its commerce clause precedents and, Thomas says, he took the lawyer at his word.

If Raich isn’t on the table, then the case is easy. Raich says the government has broad power under federal drug laws. If it can ban two sick women from using medical marijuana grown in their backyards, as it could in Raich, it can regulate Oregon doctors, who buy drugs sold on the open interstate marketplace.

Under closer examination, however, Thomas’ explanation doesn’t quite convince. In fact, the briefs for some of the parties, including doctor Peter Rasmussen, directly challenged federal power under the commerce clause. The briefs for Oregon and by groups like the Cato Institute argued that the Raich decision didn’t squarely apply. Hence, Thomas’ plea that Raich wasn’t on the table is disingenuous.

There’s another, more interesting possibility: Thomas may have dissented in order to put his own stamp on the Oregon decision. Justice Kennedy’s majority decision is long on lawyerly parsing of the fine print of federal drug laws, but it’s short on discussion of federalism. Even so, Thomas’ dissent cleverly portrays the majority decision as a “hasty retreat” from Raich. Thus, Thomas’ dissent helps to spin the Oregon decision as a significant pro‐​federalism opinion.

And, arguably, Thomas had more freedom to do so in dissent. If Thomas had voted for Oregon and argued that he was voting to limit Raich, that might have alienated pro‐​government liberals like Stephen Breyer or David Souter, jeopardizing Oregon’s case.

Thomas also may be cautiously assessing the direction of the new Roberts Court. In Oregon, the new chief justice voted with Scalia to uphold federal power.

There’s plenty of reason to think Roberts and Scalia think alike on this issue. They share a similar professional background, for one thing: Both were elite executive branch lawyers. Scalia was the head of the Justice Department’s Office of Legal Counsel, which advises agencies about their powers. Roberts had a prime post in the Office of the Solicitor General, which acts as every executive agency’s pinch hitter before the Supreme Court. Tasked with promoting the legal views of federal agents, neither office is a hotbed of pro‐​federalism, libertarian sentiments. Indeed, one of the few decisions Roberts wholeheartedly embraced in his confirmation hearings was Raich.

As law professor Thomas Merrill has argued, there’s evidence that Chief Justice Rehnquist used his power to pick who writes opinions as a weapon, denying plum opinion‐​writing assignments to justices who didn’t toe the line. Thomas, the archfederalist, may fear similar treatment from Roberts, a possible federalism skeptic. Better, Thomas may bet, to build political capital with the new chief. Alienating Roberts at the get‐​go may only marginalize Thomas — hurting, not helping, his long‐​term efforts to promote limits on federal power.

Put away your poison pens, then, federalism fans — at least for now. Thomas isn’t necessarily false to federalism. More likely, he’s just cagey. If his dissenting opinion is evidence for anything, it reflects the tricky position in which the Court’s most committed defender of federalism finds himself at the start of a new era in a changing, uncertain Supreme Court.

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