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Don't blame government for upholding federal law

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By HOWARD TROXLER

© St. Petersburg Times,
published December 3, 2001


My personal opinion is that suicide assisted by doctors ought to be legal. Carefully controlled, limited to the terminally ill who are mentally competent, but legal.

Also: Doctors should be able to prescribe marijuana if that's the right way to deal with a sick person's pain, the same way they prescribe any other controlled substance.

You might disagree strongly on those two things. Lots of people do.

When Americans disagree about what the law should say, they debate. They organize. They try to persuade their fellow citizens. They elect lawmakers who decide what the laws will say.

Then those laws get enforced.

This brings me to a pet peeve about some of the current carping over John Ashcroft, the U.S. attorney general, when it comes to cases in California and Oregon.

The people of Oregon voted (twice) for an assisted-suicide law. But Ashcroft says federal law does not allow it. He threatens to yank the federal license for prescribing drugs of any doctor who does it.

The people of California, meanwhile, passed a law allowing the medical use of marijuana. But Ashcroft has ordered the Drug Enforcement Administration to move against medical-marijuana groups in that state.

Because of California and Oregon -- and because as a conservative, Ashcroft was a proponent of "states' rights" -- he now is getting roundly criticized as a hypocrite, a man who is imposing his personal morality on the states.

After all (the critics say), if the people of a sovereign state decide what their law should say, it is arrogant of the federal government to dictate otherwise.

Let's try a little intellectual honesty here.

There is a plain fact at work. Federal law is supreme over state law, unless there is a specific loophole that says otherwise.

No state can just pass a law saying, "Federal law does not count in this state."

Some of the states tried that sort of thing before, you know.

There was a little thing called the Civil War. A century later, states of the South tried to keep their schools segregated. They tried to keep their black citizens from voting, no matter what the feds said.

States have wrongly claimed the power to "nullify" federal laws. They have tried to pass state acts of "interposition."

You know how all that turned out.

The California case is clear-cut as can be. Federal law does not allow the medical use of marijuana. If that were not already crystal-clear, the U.S. Supreme Court reaffirmed that conclusion last May 14. The vote was 8-zip. Even the "liberal" justices said so.

If Congress wants to allow medical marijuana, the Supreme Court said, then Congress should vote to do that. But a court can't just rewrite the law.

Neither can California simply choose to ignore it. Nor New York. Nor North Carolina. If the citizens don't like the law, that is a political matter entirely. They should get off their butts and elect a different Congress.

The Oregon case is not quite as clear-cut, but Ashcroft's actions still are defensible.

Here is the key point of the Oregon dispute. Federal law allows controlled substances to be prescribed only for "legitimate medical purposes."

Is suicide a legitimate medical purpose? The Department of Justice has concluded that it is not. The state of Oregon is not in a position (according to the feds) to say otherwise.

To change this, we either need to get Congress to write a different law, or we need to get a different interpretation from Justice.

But if you cheered for the feds back in the '60s, for Bobby Kennedy and LBJ and the Democratic Party, when they were enforcing federal law on the racist South, it is inconsistent now to say that Ashcroft should NOT be enforcing federal law in the states.

Unless, of course, you are suggesting that only the federal laws that you personally agree with should be enforced.

That would be intellectually lazy, now, wouldn't it?

-- You can reach Howard Troxler at (727) 893-8505 or at troxler@sptimes.com.

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