[Mb-civic] Curbing a Power Play - David S. Broder - Washington Post Op-Ed

[William Swiggard]

Curbing a Power Play

By David S. Broder
Sunday, January 22, 2006; B07

<>Is there a message for Attorney General Alberto Gonzales in last 
week's 6 to 3 Supreme Court decision rejecting the claim by his 
predecessor, John Ashcroft, that the federal government has the 
authority to overrule Oregon's assisted-suicide law? In my nonlegal 
opinion, it casts serious doubt on Gonzales's effort to defend President 
Bush's authorizing wiretapping of domestic residents without a court order.

Here's why. As the majority opinion by Justice Anthony Kennedy in the 
Oregon case makes plain, that decision does not go to the merits or the 
constitutionality of the state's unique law permitting physicians to 
give prescriptions for lethal doses of drugs to terminally ill patients 
who can prove their mental competence and who wish to avoid the possible 
pain of protracted deaths. Instead, Kennedy said, it was a 
straightforward question of interpreting the extent of the power 
Congress had granted the attorney general when it passed the Controlled 
Substances Act (CSA) in 1970.

Ashcroft cited that law in 2001 when he ruled that, notwithstanding the 
Death With Dignity measure twice approved by Oregon voters, any 
physician who gave a patient prescriptions for drugs that could be used 
for suicide would be subject to federal prosecution. Ashcroft wrote a 
regulation, borrowing language from the 1970 statute that said that 
assisting suicide was not "a legitimate medical purpose" and was 
"inconsistent with the public interest."

As Kennedy noted, Ashcroft, in his earlier role as a senator, had 
supported legislation in 1997 to give exactly that prosecutorial power 
to the attorney general, but the bill never became law. In 2001, 
operating with the approval of President Bush, Ashcroft asserted that 
the authority could be found in the 1970 statute.

Supporters of the Oregon law went to court and, in succession, a 
district court, the U.S. Court of Appeals for the 9th Circuit and now 
the Supreme Court have found that Ashcroft overstepped his authority. 
The courts have consistently ruled that a statute written to control 
drug trafficking may not be used to regulate medical practice, 
traditionally a province of the states.

In affirming that judgment, Kennedy said several things about 
interpreting the will of Congress that could be a clue to how the courts 
will treat Bush's claim that he has the power to authorize warrantless 
wiretaps. Years ago Congress explicitly barred such wiretaps except as 
authorized by a special court created by the Foreign Intelligence 
Surveillance Act. But Gonzales says that statute was, in effect, amended 
and substantially broadened -- to include warrantless wiretapping -- 
when Congress empowered the president to "use all necessary and 
appropriate force against those nations, organizations or persons he 
determines planned, authorized, committed or aided the terrorist attacks 
that occurred on September 11, 2001."

The issues are different, but in the Oregon case only three of the nine 
justices -- John Roberts, Antonin Scalia and Clarence Thomas -- took an 
expansive view of the kind of executive authority that the Bush 
administration has claimed for itself.

In his opinion, Kennedy took a distinctly skeptical attitude toward the 
claim of implied congressional authority. "It would be anomalous for 
Congress to have so painstakingly described the attorney general's 
limited authority to deregister a single physician or schedule a single 
drug, but to have given him, just by implication, authority to declare 
an entire class of activity outside 'the course of professional 
practice' and therefore a criminal violation of the CSA," Kennedy wrote. 
"The idea that Congress gave the attorney general such broad and unusual 
authority through an implicit delegation in the CSA's registration 
provision is not sustainable." And then Kennedy added a quotation from 
the 2001 Supreme Court decision in the case of Whitman v. American 
Trucking Associations that surely will be noted at the White House and 
the Justice Department: "Congress, we have held, does not alter the 
fundamental details of a regulatory scheme in vague terms or ancillary 
provisions -- it does not, one might say, hide elephants in mouseholes."

When it comes to warrantless wiretaps, it looks to me as if the 
administration is trying to hide an elephant of a violation of civil 
liberties in the mousehole of a vague anti-al Qaeda resolution passed by 
Congress without a single reference to its impact on the Foreign 
Intelligence Surveillance Act.

Ashcroft was on sound procedural and constitutional grounds when, as a 
senator, he sought to write into law a provision that would override the 
Oregon law. The right way for Bush to have gone was to ask Congress for 
authority to expand wiretapping as an antiterrorism tool, not just 
assert such a power.

I think the Supreme Court will send him that message.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/20/AR2006012001653.html
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