BRONZKALA and assisted suicide

[Greg Sisk]

I think we're talking past each other.  The difference between the amendment to the Controlled Substances Act and the statutes invalidated in Lopez and Brzonkala is between Congress regulating the manufacture and sale of a product versus, well, simply not doing that.   And given that the pertinent constitutional clause specifically speaks to commerce, that difference does and should make all the difference.  The Gun-Free School Zone Act and the Violence Against Women Act neither as written nor in substance had anything to do with regulating the process or methods by which a product is brought to market and sold to consumers; the only connection to the Commerce Clause was the argument that certain non-commercial behavior has indirect effects upon interstate commerce (an open-ended argument that the Supreme Court viewed as improperly bringing all activity within federal authority).  When Congress has directly regulated the manufacture, marketing, and sale of products in interstate commerce, whether the product safety measures are directed at tobacco, tires, or drugs, it is acting at the very height of its constitutional authority.  I am not aware of any case decided at any court level in the past half-century, before or after Lopez, in which any doubt is raised about this core of power to regulate interstate commercial activity.

Prof. Gregory Sisk
Drake University Law School
2507 University Avenue
Des Moines, IA  50311-4505
(515) 271-4184
greg.sisk at drake.edu


Garrett Epps wrote:

>I see the distinctions offered by the correspondents, but my gut >feeling is that, cogent as they are, they have a certain >contingent quality not as matters of logic but when measured >against the inteerpretive principle of Brzonkala, which I read as >1) mere impact HOWEVER LARGE AND WELL-DOCUMENTED is not enough >and 2) the Commerce Clause is never to be interpreted so as to >give Congress plenary authority over local matters.  If that is a >correct reading of BRZONKALA and its kin, then distinctions that >put end-of-life care on one side and education or gender-based >violence on the other will always seem to me to be policy-based, >result-oriented rationalizations--judicial hypocrisy.  I am >trying to test this perception by working to free my mind from >the "old" Commerce Clause paradigm that existed before LOPEZ.  >This discussion is fascinating and most valuable and I hope >others will chime in.
>
>Greg Sisk wrote:
>
>>          Reply to:   Re: BRONZKALA and assisted suicide
>> I appreciate Professor Epps' response to the postings.  I >submit that an amendment to the Controlled Substances Act that >limits the purpose for which narcotics may be prescribed is >readily distinguishable from the Gun-Free School Zone Act which >made no effort to connect the prohibition to commerce in firearms >(nor can one think how Congress could have done so in that >context).  Firearms may indeed by part of a national market that >is regulated by the federal government, but the Gun-Free School >Zone Act was disconnected from any aspect of that market and >instead attempted to directly regulate behavior with a supposed >impact on commerce (the Violence against Women Act addressed in >Bronzkala is much the same).  By contrast, the Pain Relief >Promotion Act addresses the market/commerce side of the matter by >focusing upon the prescription -- that is, the sale -- of >controlled narcotics manufactured and marketed in interstate >commerce; in sum, just as the Controlled Substance Act ha!
>s !
>> always prohibited the sale of narcotics for recreational >purposes, now it would prohibit the sale of narcotics for lethal >purposes.  Nor is this entirely unprecedented, even with respect >to the Controlled Substance Act, as witness the dispute about >medicinal use of marijuana in California and the conflict with >federal law.  Moreover, my reading of the Supreme Court is that >Lopez and Bronzkala were attacking the congressional over-use of >impact upon commerce by the targeted behavior as a means of >expanding federal power.  The Pain Relief Promotion Act does not >depend on such a justification -- such as arguing about the >impact on commerce of individuals committing suicide -- but >rather is connected directly to the commercial acts of >manufacturing, marketing, and selling a product.
>>
>> Gregory Sisk
>> Richard M. & Anita Calkins
>>   Distinguished Professor
>> Drake University Law School
>> 2507 University
>> Des Moines, Iowa  50311-4505
>> (515) 271-4184
>> greg.sisk at drake.edu
>>
>> Garrett Epps wrote:
>> >My thanks to those who have made thoughtful contributions to >this thread.  >The argument is, I think, unquestionably that use >of controlled substances is >part of a national market and a >commercial activity.  However, I am not convinced >that this >distinguishes the CSA persuasively from LOPEZ.  Guns are also >part of a >national market that is highly regulated by the >federal government.  That was not >enough to save a Congressional >regulation of the end-user of the gun.  I also >cannot believe >that either the Gun-Free School Zone Act or PRPA can be saved >from >invalidation merely by the formality of a jurisdictional >element.  And we know that >even extensive factual findings on >impact mean nothing if the impact is >"attenuated" (which means, >I think, what the Four Horsemen used to call "indirect").   >And >to those who say that the CSA has always been there regulating >"legitimate >medical practice," I respond, read the actual >history.  At the time the CSA was >passed Congress!
> e!
>> xplicitly gav!
>> >e
>> >assurance that the meaning of legitimate medical use would be >drawn from >state law.  This is to my knowledge the first >violation of this principle.  It >raises the issue of what CJ >Rehnquist means when he says, "there must be a >distinction >between what is truly local and what is truly national," and >further that the >courts will determine that distinction.
>> >
>> >Please don't get me wrong.  I myself am a commerce power hawk >and regard >PRPA as unwise legislation but as legislation that >is, under the eye of eternity, >probably constitutional.  >However, right now  we don't live under the eye of >eternity, we >live under the eye of Rehnquist et al.  I do not believe they can >>distinguish  this case from LOPEZ and BRZONKALA without at least >the appearance of the >kind of result-driven hypocrisy that has >made previous attempts at Court policing >of the commerce power >boundary such a series of case studies in judicial failure. > I >welcome further thoughts from those who agree or who disagree.  >This is very >valuable for me.
>> >
>> >>
>> >
>> >--
>> >Garrett Epps
>> >Associate Professor
>> >University of Oregon School of Law
>> >357 Knight Law Center
>> >1221 University of Oregon
>> >Eugene OR 97403
>> >
>> >PHONE: (541) 346-1578
>> >  FAX: (541) 346-156
>> >
>> >gepps at law.uoregon.edu
>> >Trouble sleeping? Try my latest works: >>http://www.law.uoregon.edu/faculty/epps/default.html
>> >
>> >
>
>--
>Garrett Epps
>Associate Professor
>University of Oregon School of Law
>357 Knight Law Center
>1221 University of Oregon
>Eugene OR 97403
>
>PHONE: (541) 346-1578
>  FAX: (541) 346-1564
>
>gepps at law.uoregon.edu
>Trouble sleeping? Try my latest works: >http://www.law.uoregon.edu/faculty/epps/default.html
>--------------------------
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>From: Garrett Epps <gepps at LAW.UOREGON.EDU>
>Subject: Re: BRONZKALA and assisted suicide
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