Gonzales v. Oregon

[Jonathan Adler]

>From my initial read I think Justice Thomas is being consistent on these
points (but perhaps not on another).  

First, the parties did not raise the constitutional objection.  All that was
at issue was whether the executive could do this assuming that the federal
government has the power to regulate in this fashion.  Second, the majority
does not rely upon federalism principles to reach its decision.  To the
contrary, it says that recourse to the federalism clear statement rule of
statutory construction is unnecessary because of the nature of the statute
itself ("It is unnecessary even to consider the application of our clear
statement requirements . . . or presumptions against preemption . . . to
reach this commonsense conclusion," slip op. at 28).  

Justice Thomas could well have concurred relying upon the clear statement
rule, but I read him as suggesting that the rule is deprived of its force if
federal power is not meaningfully constrained by the enumeration or powers
in Article I.  In other words, if there is no real limit on federal power,
then Courts do not need to read statutes narrowly to avoid tough
constitutional questions because the tough constitutional questions are not
really there.  Thus I read Thomas as saying "If we assume that the statute
is as broad as the Court determined in Gonzales v. Raich, and such a broad
statute is clearly within constitutional bounds, there is nothing
unreasonable about the executive branch interpreting and enforcing it in
this way."  I am not sure I am convinced, but I think it's a defensible
view.

Another point that I found interesting about Justice Thomas' approach to
this case is that it seems to be in tension with some of his prior opinions
on judicial deference to agency interpretations of ambiguous federal
statutes.  We know that Justice Scalia views Chevron quite broadly, but
Justice Thomas has not in prior cases.  To the contrary, Justices Thomas and
Scalia have differed quite a bit on their application of Chevron.  The
majority opinion in this case further whittles away the broad approach to
Chevron that Scalia defends (often in dissent, as in Mead), and I would have
thought that Justice Thomas would have agreed with this.  Perhaps he, with
Scalia, sees the statute as not particularly ambiguous, and therefore
Oregon's only recourse would be to rely upon federalism arguments that were
not in play.

JHA


------------------------------
Jonathan H. Adler
Associate Professor
Case Western Reserve University School of Law
11075 East Boulevard 
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Samuel Bagenstos
Sent: Tuesday, January 17, 2006 2:40 PM
To: conlawprof at lists.ucla.edu
Subject: Gonzales v. Oregon

Can anyone explain why the last paragraph of Justice Thomas's dissent makes
any sense?  If Justice Thomas really believes that Congress doesn't have
power to regulate intrastate medical practice, but a majority of the Court
disagrees, why shouldn't he go along with a rule that says that we're not
going lightly to assume that Congress has exercised that authority?  And is
it fair for him to say the majority (with the exception, I suppose, of
Justice O'Connor) is acting in a manner inconsistent with their positions in
Raich?  One can criticize the position, but its certainly coherent, isn't
it, to say that Congress has broad power but we want to be sure that
Congress meant to make the change in the federal-state balance that it made?
(Leave aside here the fact that the majority doesn't even really rely on a
plain-statement rule -- the federalism issues come into the analysis as sort
of standard pieces of statutory interpretation analysis.)

====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
314-935-9097
Personal Web Page:
http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:  http://disabilitylaw.blogspot.com/

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