BRZONKALA [Lopez/Morrison] and assisted suicide

[Bryan Wildenthal]

I have enjoyed this thread, as I just got back from teaching a class on
Lopez and Morrison (Brzonkala), and plan to use the proposed CSA amendment
as a hypothetical exercise.  I would hope and expect that my students spot
the obvious and plausible (arguably compelling) grounds for distinction
Professor Sisk and others have pointed out.  However, I also agree with
Professor Epps that Lopez/Morrison at least raises some doubt about the
constitutionality of the CSA proposal.  The degree of doubt which it raises
may depend on how enthusiastically one views L/M.  If one "gets in the
spirit" of L/M and ponders logical extensions of the doctrine, surely it is,
at least, subject to some doubt whether Congress can/should dictate the
precise medical uses of a drug, of which Congress generally chooses to allow
legal interstate sale and local dispensation/prescription.

For example, I think Congress lacks power under L/M to simply outlaw
assisted suicide, or, say, "partial birth" abortion.  I understand (as
others have already pointed out) that the CSA proposal does not do something
like that directly, but rather, uses a variation of the
"commerce-prohibiting" technique of targeting commodities traded in
interstate commerce (an approach that was not the focus of L/M and, as Prof.
Sisk notes, has been doctrinally less controversial than the "affecting
commerce" approach).  But could Congress, for example, effectively outlaw
"partial birth" abortion by banning the use of all commonly used anesthetics
(presumably commodities sold in interstate commerce like drugs, food, etc)
in that, and only that, procedure?  Perhaps L/M is vulnerable to that kind
of end-run, and perhaps that is evidence of the doctrine's unworkability,
but perhaps -- just perhaps -- the enthusiasts of the doctrine on the Court
will not allow it to be so easily shredded.

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Greg Sisk [mailto:Greg.Sisk at DRAKE.EDU]
> Sent: Wednesday, September 06, 2000 5:51 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: BRONZKALA and assisted suicide
>
>
> 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
> intersta!
> 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