End of Life Decisions and the Commerce Clause

Samuel Bagenstos srbagenstos at wulaw.wustl.edu
Wed Jul 27 12:09:52 PDT 2005

Surely "cannot guess at" is too strong.  Lopez and Morrison both purport
to rest on an economic/noneconomic distinction.  Congress can't regulate
purely local noneconomic conduct because it has a substantial effect on
commerce, but it can regulate purely local economic conduct if it has
such an effect.  That distinction might not be a coherent one -- I tend
to agree with Justice Souter that it's not -- but it is the distinction
on which Chief Justice Rehnquist relied in his opinions for the Court in
those cases.  So the difference between public education and medical
care would be that the latter is economic while the former isn't.  Seems
plausible enough to me, and if I believed in the distinction the way
Lopez and Morrison say they do I think I'd buy it.  

Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
Personal Web Page: 
Disability Law Blog:  http://disabilitylaw.blogspot.com/

>>> "Tepker, Rick" <rtepker at ou.edu> 7/27/2005 12:31:41 PM >>>
The following passage from Chief Justice Rehnquist's opinion in Lopez
leaves me uncertain about whether Congress may enact direct regulations
of medical treatment.  Off hand, I cannot guess at what distinctions
there would be between federal regulation of curriculum and federal
regualtion of medical treatment programs.

"Justice Breyer focuses, for the most part, on the threat that firearm
possession in and near schools poses to the educational process and the
potential economic consequences flowing from that threat. . . . 
Specifically, the dissent reasons that (1) gun related violence is a
serious problem; (2) that problem, in turn, has an adverse effect on
classroom learning; and (3) that adverse effect on classroom learning,
in turn, represents a substantial threat to trade and commerce . . . .
This analysis would be equally applicable, if not more so, to subjects
such as family law and direct regulation of education. 

For instance, if Congress can, pursuant to its Commerce Clause power,
regulate activities that adversely affect the learning environment,
then, a fortiori, it also can regulate the educational process directly.
Congress could determine that a school's curriculum has a-significant"
effect on the extent of classroom learning. As a result, Congress could
mandate a federal curriculum for local elementary and secondary schools
because what is taught in local schools has a significant "effect on
classroom learning," cf. post, at 9, and that, in turn, has a
substantial effect on interstate commerce. 

Justice Breyer rejects our reading of precedent and argues that
"Congress . . . could rationally conclude that schools fall on the
commercial side of the line." Post, at 16. Again, Justice Breyer's
rationale lacks any real limits because, depending on the level of
generality, any activity can be looked upon as commercial. Under the
dissent's rationale, Congress could just as easily look at child rearing
as "fall[ing] on the commercial side of the line" because it provides a
"valuable service--namely, to equip [children] with the skills they need
to survive in life and, more specifically, in the workplace." Ibid. We
do not doubt that Congress has authority under the Commerce Clause to
regulate numerous commercial activities that substantially affect
interstate commerce and also affect the educational process. That
authority, though broad, does not include the authority to regulate each
and every aspect of local schools. 


From: conlawprof-bounces at lists.ucla.edu on behalf of John Parry
Sent: Wed 7/27/2005 1:23 PM
To: conlawprof at lists.ucla.edu 
Subject: End of Life Decisions and the Commerce Clause

Forgive me if the list already discussed this question in the wake of
the Schiavo litigation and legislation, but . . .
Is there any doubt (pre or post Raich) that Congress could regulate
decisions to provide or refuse to provide life-sustaining treatment,
food, or hydration, etc. under the commerce clause?  People receiving
care in a hospital, hospice, or nursing home are engaging in a
commercial transaction.  Many of those receiving care in their homes are
engaged in the commercial transaction of employing a home health aide,
visiting nurse, etc.  Even for those receiving care from family members,
arguably the rule of Raich (whatever it is) allows regulation (for
example, under the Scalia theory that it is necessary to the success of
the broader regulatory program).  Congress could conclude that these
transactions should not be used in a way that hastens death, or it could
require that these transactions include the possibility of ending
treatment to allow death.
All of this would be subject to any substantive due process right to
receive pain medication that would also hasten death (as per O'Connor et
al in Glucksberg -- but how would Roberts vote?).
I guess my question is two-fold.  First, is there a flaw in this
commerce clause logic, and second, what are the best arguments against
this line of reasoning?

John T. Parry
Visiting Professor, Lewis & Clark Law School
Associate Professor, University of Pittsburgh School of Law
parry at lclark.edu 

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