Elephants in Mouseholes

The Supreme Court's 6-3 decision today in favor of the state of Oregon was a big victory for the idea of limited government... and a small victory for proponents of the right to die. Although the court did not hold that there was a right to die, the court recognized that the issue is a matter of national debate and they kept the door open. That is a model of real judicial restraint.

Justice Kennedy saw the big picture in this case. He wrote that the federal statute delegating to the Attorney General and FDA the power to regulate drugs was about protecting consumers, fighting drug abuse and drug addiction, and outlawing recreational drug use--not physician-assisted suicide. He also wrote that the issue of whether physician-assisted suicide is a legitimate medical practice is a question too big for the attorney general and outside his area of expertise anyhow. Most important, Kennedy wrote,

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.

"Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—-it does not, one might say, hide elephants in mouseholes."
[Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001)]

"We are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion"
[FDA v. Brown & Williamson Trucking Corp, 529 U. S. 120, 160 (2000)].

The importance of the issue of physician-assisted suicide, which has been the subject of an "earnest and profound debate" across the country... makes the oblique form of the claimed delegation all the more suspect.

Scalia, on the other hand, feigns blindness to the real issue at stake. He focused on minutae of text, quoted dictionary definitions, and wrote the court was, "merely presented with a question of statutory interpretation, and not the extent of constitutionally permissible federal power." Scalia treats the law like a linguistic game rather than a matter of common sense. He would let a greedy executive gobble up as much power as it can squeeze into the text until the distended law ruptures. And his presumption always is for the government, never the people.

(It's also interesting that the three dissenters were all Catholic, yet the one remaining Catholic on the court was Justice Kennedy himself. A family squabble, perhaps?)