BRONZKALA and assisted suicide

Thu Sep 7 11:26:39 PDT 2000

Brzonkala and Lopez did not involve regulation OF interstate commerce
itself.  They involved regulation of activity that supposedly AFFECTED
interstate commerce.  I think Professor Sisk is suggesting that the
Controlled Substances Act falls into the first, not the second,
category.  Hence, whatever broad reading you are giving to Brzonkala and
Lopez (which, in any event, is not the only way to read them) would be
irrelevant to the constitutionality of the CSA.

Robin Charlow
Hofstra University School of Law
Hempstead, New York  11549
email: lawrdc at hofstra.edu
phone (516) 463-5166

>>> Garrett Epps <gepps at LAW.UOREGON.EDU> 09/06/00 10:08PM >>>
I don't think we're talking past each other.  That is, I really do
understand the words you are using.  But I think the shift implied by
Brzonkala's language is more radical than that.

Greg Sisk wrote:

> 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 inters!
ta!
> te 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 Controlle!
d !
> 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
wa!
s !
> >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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> >Date: Wed, 06 Sep 2000 16:12:16 -0700
> >From: Garrett Epps <gepps at LAW.UOREGON.EDU>
> >Subject: Re: BRONZKALA and assisted suicide
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--
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