Let Them Smoke Tobacco

My new favorite law professor Alicia Ouellette summarizes the impact of yesterday's court decision,

which held that Congress has the power to outlaw medical marijuana, even in states that have made its use legal. The case is disturbing because it validates federal oversight of sensitive questions of medical decisionmaking , an area previously reserved to the individual States.

The decision does not bode well for supporters of Oregon's PAS law in the case initiated by John Ashcroft (and now carried on by Alberto Gonzalez), which will be before the Court next fall. The issues in the Oregon PAS case are not identical to the issues in the medical marijuana case, but both involve the reach of the same law (the federal Controlled Substances Act) and state power in medical decisionmaking. Six justices (including the 5 most liberal members of the court), have now interpreted the reach of the Federal government to be broad and superior to that of the States.

Justice O'Connor, who wrote in Quill that PAS is the kind of issue that should be decided by the States, not the federal government, dissented in yesterday's decision. She lamented that the decision allows federal encroachment where previously the law promoted "innovation by allowing for the possibility that 'a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments.'" The Oregon PAS statute is clearly such an experiment. It may very well be at risk.