Yesterday, the Supreme Court decided Gonzalez v. Oregon, the assisted suicide case. At issue was the federal government's ability (through agencies) to regulate medical procedures. The Court ruled in favor of the state, thereby allowing Oregon's assisted suicide law to stand.
This case is complex and littered with administrative law questions. Let's leave it aside for the time being. Of note was Justice Scalia's conclusion about the status of the Court's commerce clause jurisprudence (the federal government's ability to regulate commerce and in reality its ability to pass laws about anything).
"The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality--for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U. S. 308, 321-323 (1913); Lottery Case, 188 U. S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible."
It's difficult to hear a staunch federalist such as Scalia make such an argument. But it's hardly shocking. Last year he concurred in judgment in Gonzales v. Raich, permitting the federal government to ban medical marijuana over the state's objection.
So is Scalia a federalist? Professor Bainbridge thinks not.
Scalia is not a radical originalist. His support for precedent is well-known. He agrees with Bork's view that precedents that are rooted in jurisprudence should be upheld.
Yet, this is not a case of precedent. The case had nothing to do with the commerce clause. Hoke, Wickard, and all the other commerce clause cases are irrelevant.
What Scalia is saying is that the Court's jurisprudence has not just expanded the breadth of the commerce clause, but has created a much more powerful federal government. To return it to size (in accordance with originalism) would require a complete overhaul of the Court's view on federal power. That would require a fundamental change in how the could looks at federal power.
Did Scalia betray his principles? I don't think so. The horse already left the barn. They cannot rein in the federal government at this point. So if the agency's interpretation had a constitutional basis (I'm grossly ignorant on administrative law question), then it should be upheld. The original understanding of the clause cannot be applied without a massive reversal of case law on a scale we've never seen before.