Tuesday, January 31, 2006

The Oregon Right-to-Die Case Is Not About Suicide

January 31, 2006

As many of you have no doubt heard, the Oregon Death With Dignity Act recently withstood a legal assault at the Supreme Court. The ODWDA immunizes physicians who prescribe lethal overdoses of drugs to terminally ill patients from both civil and criminal suits, but only in cases where two doctors agree that the person contemplating ending his or her life is mentally fit to make the decision and will likely die of an incurable disease within six months. The attending physician can prescribe the drug, but they are barred from actually administering it.

The case was prosecuted under the 1970 Controlled Substances Act, which regulates everything from Tylenol to heroin by placing it in one of five “schedules.” The drugs used by doctors to end terminal patients’ lives are almost entirely Schedule II drugs like morphine, which means that under the CSA, they must be prescribed by an attending physician for a “legitimate medical purpose.”

The case was initiated by former Attorney General Ashcroft in 2001 and was picked up by Alberto Gonzales’ Justice Department when he took office early last year, becoming Gonzales v. Oregon. The law was not challenged on any Constitutional basis; in fact, it wasn’t challenged on the basis of any law at all. Instead, Ashcroft issued an “Interpretive Rule” which brought physician-assisted suicide under the purview of the Act, simply declaring by fiat that physician assisted suicide is not a “legitimate medical purpose.” Then he filed his complaint. Make no mistake, that means exactly what it sounds like: the Attorney General made it illegal and then he took it to court.

Janet Reno was asked by several members of Congress to do the exact same thing in 1997, but she declined on the grounds that the CSA didn’t allow the federal government to substitute its judgment for that of the states when it comes to regulating the medical profession or determining what constitutes legitimate use. The ODWDA was passed in 1994 and actually survived an Oregon ballot measure seeking to have it rescinded in 1997, no doubt instigating the Congressional effort to overturn it at the federal level. There was even a bill introduced into the House in 1998 seeking to amend the CSA to explicitly prohibit physician-assisted suicide, but it failed!

Unsurprisingly, the case came down 6-3, with Chief Justice Roberts joining Justices Thomas and Scalia in opposition to the ODWDA and the rest of the court solidly in favor of Oregon. Given the absence of clear Congressional intent to exercise its power in the matter, the Supreme Court declined to invalidate the law, and rightly so. The Attorney General is simply not allowed to steamroll a democratically selected state statute which does not contravene federal law by “reinterpreting” federal law. The ODWDA has been in place for nearly 12 years and has survived several legitimate attempts at its removal. Once again, Bush is testing the limits of Executive power to overcome the democratic process and remake the law in the guise of interpretation, but this round, at least, goes to the People.

Tuesday, January 17, 2006

Alito’s Confirmation and the Authoritarian Presidency

January 17, 2006

One year ago, I watched Bush appoint a slew of executive-friendly legal counsel and predicted that in his second term, he would no longer bother violating the law but would instead seek to change it. (The New Law, November 18, 2004; Chertoff Indicative of More Legal Manipulations, January 20, 2005) The more I learn about Samuel Alito, the more certain I become that I was terrifyingly right.

Unless you’ve grabbed this paper hot off the presses, Alito will be on his way to the Senate by now, likely with fewer token “no” votes than John Roberts earned. During the Roberts hearing, Biden called the process a “kabuki dance,” and having now watched two of the proceedings in their entirety, I must agree. Alito’s attempts to talk circles around the Senators of the Judiciary Committee were successful with frustrating frequency, and the Senators’ comments were disappointingly (but unsurprisingly) verbose, rambling, and non-specific. Questions with multiple elements were issued whole as bulleted lists, which of course allowed Alito to gloss over the points he didn’t care to address. Questions asked of no one in particular, rhetorical points made for the cameras, and meaningless charts were the hallmarks of yet another round of play-to-the-folks-at-home political soapboxing.

This doesn’t make the formalities uninformative; it just makes the information extraction process ridiculously oblique. More can be gleaned from what Alito refuses to say than from what he actually says in response to questions. Senator Specter opened the proceedings with an inquiry into Alito’s position on the right to privacy, in which the right to an abortion is rooted, and Alito quickly and unequivocally asserted that it is protected by the Constitution. Specter wasted no time jumping into the political powderkeg of Roe v. Wade, questioning Alito abut his stance on stare decisis, the technical term for the doctrine that past judicial decisions should be followed in deciding future cases. Alito, unsurprisingly, blandly recited the standard platitudes about precedent establishing stability and constancy in the law, but he was disturbingly careful to emphasize former Chief Justice Rehnquist’s oft-quoted opinion that stare decisis is “not an inexorable command” every time the topic was raised.

He also played the advocacy card early on, but he stopped short of disavowing his 1985 statement that the Constitution does not protect the right to an abortion. His reasoning was identical to that of John Roberts: lawyers are advocates of their clients’ interests, often expressing views with which they might personally disagree. Alito claimed that because he was an advocate for the administration at the time, it should come as no surprise that his stated views neatly toed the party line. He refused to comment further, however, on the grounds that the issue might come up before the court.

When questioned on the issue of the Supreme Court’s role in checking the President’s power, he resorted to mealy-mouthed statements to the effect that no one is above the law. When pressed, he fell back on quotations from Justice Jackson’s concurring opinion in a 1952 Supreme Court case, which set forth three ways of categorizing Presidential actions. First, there are those actions the President takes which are backed by Congress; this is when the President’s power is at its zenith. Second, there are actions which are outside the scope of Congress’ prior consideration; in such a vacuum, Presidential power is only middlin’ strong. Finally, if the President acts against an explicit Congressional mandate, his power is at lowest ebb. Does this tell you anything about what Alito thinks of Presidential power? Me either.

This is not a small question! The latest authoritarian revelation from the Bush regime is the warrantless and completely unauthorized wiretapping of American citizens, a story broken by the New York Times last month. This is in direct opposition to the Foreign Intelligence Surveillance Act of 1978, but Attorney General Alberto Gonzales claims the “all necessary and proper force” language of the Authorization for Use of Military Force passed by Congress in the wake of the 9-11 attacks gives the President carte blanche to do as he damn well pleases when it comes to prosecuting the war on terror. (Uh, how do we reconcile that with the administration’s position that the war on terror is unending? Now all the President has to do is point and scream “Terrorist!” before he attaches the car battery to your nipples.) Of course, Alito actually has a perfectly valid reason to sidestep any questions specifically about FISA; it’s almost certain to come before the Supreme Court, and Alito, if confirmed, will have to enter an opinion.

But there is also the issue of the unitary executive theory, which stems from a very fine-grained reading of the Constitutional grant of Presidential power. The first sentence of Article II states, “The executive Power shall be vested in the President of the United States of America.” Simply put, the theory holds that executive power is indivisible, vested solely in the office of the President, because it is referred to as “the” executive power. This authority is apportioned out to several different organizations, like the military and the Environmental Protection Agency, but these organizations serve as arms of the executive. The upshot of this is twofold. Procedurally, it means no part of the executive branch may sue another part because this would be, in effect, the President suing himself. The substantive aspect of this theory, however, is that the President gets to define the scope of his own power, a decision which may not be reviewed by the judiciary. John Yoo, principal defender of this position and influential White House legal strategist, argued publicly less than a month ago that the President has the power to order a suspect’s child tortured in front of them if he so chooses-including crushing the child’s testicles.

Alito has also expressed the belief that the President’s signing statements declaring his understanding of a bill’s intent should be given as much deference as the statements of Congress contained in the bill. In signing the McCain torture ban into effect, for instance, the President issued a signing statement that completely eviscerated the bill by exempting the Presidency, and thus the entire executive branch, from its purview. Bush has been shockingly willing to sign anything that comes across his desk, the first President since James Garfield to go an entire term without vetoing anything (and Garfield was assassinated after only a few months), but his reasoning now seems simple: why veto a bill when you can just change it with a signing statement? In fact, Bush has used this trick more than 500 times since he took office.

Alito has given every impression of candor and forthrightness in his confirmation hearing, but he has carefully stopped short of outright denouncing the radical Right views that make the voting public skittish. It’s the things Alito won’t say that shock the attentive viewer. He refuses to disavow the notion that the President’s “signing statements” carry equivalent weight to the actual words of the legislation he signs. He won’t flatly and directly state that the President cannot override the law or immunize others who break it. He declines to comment on whether the President is the only one who can determine the extent of Presidential power. This is madness!

The real elephant in the room, however, is whether we can even trust what Alito actually does say. Senator Schumer pointed out that both Antonin Scalia and Clarence Thomas expressed great respect for precedent in their confirmation hearings, yet these two vote to overturn precedent as though it were mere conjecture and suggestion. In his confirmation hearing, Scalia even criticized Thomas’ propensity for voting his personal opinion over established law whenever the two conflict. What is to bind Alito to his statements more closely than his colleagues-to-be? Absolutely nothing.

Of course, now everyone wants to know whether there will be a filibuster. The Democrats, faced with their last chance to make serious use of the tactic in stopping a judicial nominee, have very itchy trigger fingers, but Alito has been so careful to keep his actual opinions under wraps that there may not be any real justification. Nevertheless, Democrats may filibuster the Alito nomination simply to force the Republicans’ hand on the so-called “nuclear option” of removing the filibuster from the Senate rules altogether. That the Republicans even threaten such a thing is evidence of their obsession with pushing their agenda at the expense of everything else and symptomatic of their lack of respect for the political process. Forcing them to actually exercise the nuclear option, however, would set off a firestorm in Washington, and with the upcoming Congressional elections, the Republicans really can’t afford to look bad.

The verdict? Loathe though I am to admit it, Alito will likely pass, but it’s going to be a hell of a show. Those of you who love soap opera politics, stock up on popcorn and stay tuned. Those of you who realize you have to live in this country, stock up on bottled water and start digging your bomb shelter. It’s a scary time to be an American.

Tuesday, January 10, 2006

Fanatics Founder in Florida

January 10, 2006

The right wing’s attempts to hijack government funding for their religion hit another road block last week when the Supreme Court of Florida declared a private school voucher program to be in violation of the state constitution. Coming on the heels of the Pennsylvania federal ruling recognizing “intelligent design” for the theological hokum it is, the Florida ruling is neither shocking nor revolutionary. This case is merely the latest in a long line declining to provide government aid to help accomplish the infinitely expansionist agenda of the “evangelical” Christian church.

The pivot of the Florida decision is a clause found right at the beginning of the education section, Article IX of the Florida Constitution, specifying that “[a]dequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools….” The court cites a 1927 ruling that if a law defines a specific way of accomplishing its goals, it impliedly prohibits any other method. Because the constitution imposes a duty to educate the state’s citizens and specifies “free public schools” as the method of doing so, vouchers for private schools are right out.

Further, and to my mind more importantly, the court held that the requirement of uniformity was also violated. Private schools receiving voucher students weren’t required to meet the same standards as public schools. Because the government gives the money to the family of the voucher student instead of directly to the private school itself, the school is able to sidestep all the requirements aimed at “schools receiving public funds.” What does this add up to? Non-uniform schools.

Though the two dissenters argued that there was no evidence before the court that the schools were actually non-uniform, the five-member majority held that such evidence was unnecessary. To hold such regulations inapplicable in the private school context is impliedly to say that it is okay for private schools to deviate from them. This is like declaring that prohibitions on murder don’t apply to Tom, then, when someone complains, ruling that such regulations don’t need to apply to Tom because the plaintiff can’t show that Tom actually committed murder.

Interestingly, and I think rightly, the court did not rule on whether the part of the Florida constitution regarding separation of church and state had been violated. Diverting funds from a public project to a competing private project is definitely the main issue here; the use of tax money to subsidize private schools in areas of low school performance is completely counterproductive. The Florida scheme diverts money from the school district in which the child lives to fund a private education, so bad schools lose students, then funding, then get worse, then lose more students, and then more funding, ad inifinitum. What sense is there in just watching while underperforming schools slowly crash like this?

The theory is one of markets. Proponents of vouchers theorize that if a school is forced to pay for the private education of students who choose to leave, it will work harder to improve and keep its funding by keeping its students. This is great in a free market economy, where a profit motive would drive the owner of the school to enact more effective educational policies, try to attract students, and to find out what the students’ parents are looking for in an education for their kids. That’s not how it works when school is governmentally-mandated, though. Everyone is required to send their children to school; they have the option of doing it for free at a government institution or paying a private enterprise for specialized schooling. Either way, they have to go. Once the government starts giving public money to private schools, such schools are better funded than they would have been before and the public schools are proportionately poorer. Eventually, the public schools must be abandoned in favor of unaccountable, government-subsidized private schools.

State governor Jeb Bush said that he was “disappointed” with the ruling and remarked that “the public never benefits from the government protecting a monopoly.” First I’d like to point out that public schools are owned and operated by the government, and they certainly don’t turn a profit. Trust me, no one drives a Lamborghini because Ben Franklin Junior High has cornered the market on eighth grade diplomas in north Jacksonville. More importantly, though, there is a buttload of competition with public schools. My mother, for instance, worked at a private Montessori school that had several hundred students. Keep your eyes peeled on your next trip to the grocery store and you’ll see Our Lady of Really Bad Earaches Catholic School or Goldenleaf Military Academy. The assertion that there is somehow no choice regarding public schools evinces a failure to separate governmental and business endeavors.

We have provided for the support of our citizens by providing free necessities, and if you prefer a different variety from that which is provided, then you’re free to go about getting it for yourself. To say that those who are unwilling or unable to spend money on private schooling are somehow being mistreated by the government is like saying that those who are unwilling or unable to buy themselves caviar are being mistreated by the soup kitchen. Beggars can’t be choosers, so either try to brainwash your children on your own time or come up with the cash to let a professional do it for you, and quit trying to steal public funding for your crusade.