Detail, east Portland photo, courtesy Miles Hochstein / Portland Ground.

For old times' sake
The bojack bumper sticker -- only $1.50!

To order, click here.

Excellent tunes -- free! And on your browser right now. Just click on Radio Bojack!

E-mail us here.


This page contains a single entry from the blog posted on January 17, 2006 8:33 AM. The previous post in this blog was That which we call cheese food. The next post in this blog is City Club on bluecoat pension system: Blow it up and start over. Many more can be found on the main index page or by looking through the archives.



Law and Taxation
How Appealing
TaxProf Blog
Mauled Again
Tax Appellate Blog
A Taxing Matter
Josh Marquis
Native America, Discovered and Conquered
The Yin Blog
Ernie the Attorney
Above the Law
The Volokh Conspiracy
Going Concern
Bag and Baggage
Wealth Strategies Journal
Jim Hamilton's World of Securities Regulation
World of Work
The Faculty Lounge
Lowering the Bar
OrCon Law

Hap'nin' Guys
Tony Pierce
Parkway Rest Stop
Along the Gradyent
Dwight Jaynes
Bob Borden
Dingleberry Gazette
The Red Electric
Iced Borscht
Jeremy Blachman
Dean's Rhetorical Flourish
Straight White Guy
As Time Goes By
Dave Wagner
Jeff Selis
Alas, a Blog
Scott Hendison
The View Through the Windshield
Appliance Blog
The Bleat

Hap'nin' Gals
My Whim is Law
Lelo in Nopo
Attorney at Large
Linda Kruschke
The Non-Consumer Advocate
10 Steps to Finding Your Happy Place
A Pig of Success
Attorney at Large
Margaret and Helen
Kimberlee Jaynes
Cornelia Seigneur
And Sew It Goes
Mile 73
Rainy Day Thoughts
That Black Girl
Posie Gets Cozy
Cat Eyes
Rhi in Pink
Ragwaters, Bitters, and Blue Ruin
Rose City Journal
Type Like the Wind

Portland and Oregon
Isaac Laquedem
Rantings of a [Censored] Bus Driver
Jeff Mapes
Vintage Portland
The Portlander
South Waterfront
Amanda Fritz
O City Hall Reporters
Guilty Carnivore
Old Town by Larry Norton
The Alaunt
Bend Blogs
Lost Oregon
Cafe Unknown
Tin Zeroes
David's Oregon Picayune
Mark Nelsen's Weather Blog
Travel Oregon Blog
Portland Daily Photo
Portland Building Ads
Portland Food and
Dave Knows Portland
Idaho's Portugal
Alameda Old House History
MLK in Motion

Retired from Blogging
Various Observations...
The Daily E-Mail
Saving James
Portland Freelancer
Furious Nads (b!X)
Izzle Pfaff
The Grich
Kevin Allman
AboutItAll - Oregon
Lost in the Details
Worldwide Pablo
Tales from the Stump
Whitman Boys
Two Pennies
This Stony Planet
1221 SW 4th
I am a Fish
Here Today
What If...?
Superinky Fixations
The Rural Bus Route
Another Blogger
Mikeyman's Computer Treehouse
Portland Housing Blog

Wonderfully Wacky
Dave Barry
Borowitz Report
Stuff White People Like
Worst of the Web

Valuable Time-Wasters
My Gallery of Jacks
Litterbox, On the Prowl
Litterbox, Bag of Bones
Litterbox, Scratch
Ride That Donkey
Singin' Horses
Rally Monkey
Simon Swears
Strong Bad's E-mail

Oregon News
The Oregonian
Portland Tribune
Willamette Week
The Sentinel
Southeast Examiner
Northwest Examiner
Sellwood Bee
Mid-County Memo
Vancouver Voice
Eugene Register-Guard
OPB - Portland
Salem Statesman-Journal
Oregon Capitol News
Portland Business Journal
Daily Journal of Commerce
Oregon Business
Portland Info Net
McMinnville News Register
Lake Oswego Review
The Daily Astorian
Bend Bulletin
Corvallis Gazette-Times
Roseburg News-Review
Medford Mail-Tribune
Ashland Daily Tidings
Newport News-Times
Albany Democrat-Herald
The Eugene Weekly
Portland IndyMedia
The Columbian

The Beatles
Bruce Springsteen
Joni Mitchell
Ella Fitzgerald
Steve Earle
Joe Ely
Stevie Wonder
Lou Rawls

E-mail, Feeds, 'n' Stuff

Tuesday, January 17, 2006

Victory over Ashcroft

The Oregon Death with Dignity Act has been upheld over the objections of the Bush administration -- at least for now. The vote was 6-3, with Roberts, Scalia and Thomas dissenting (what a surprise -- and Alito will make four).

On first reading, Justice Kennedy's majority opinion appears to rely heavily on the language and meaning of the federal Controlled Substances Act, which the Court held does not give the U.S. attorney general powers to make rules on this subject. Of course, that federal law could be changed at any time by Congress, and a new version could very well give the AG the authority he seeks. For now, however, the Oregon regime remains in effect.

Comments (24)

Roberts, Alito, Thomas, Scalia... Eventually, they'll be known as the RATS.

As we learned in the Alito hearings, the namecalling and posturing isn't gaining any traction with Middle-America. The RATS thing is cute, but it turns off the moderates you need to be targeting in '06. If this is what Progressive campaign advisors such as yourself are advising candidates to spout, it's gonna be a long year for Dems.

As we learned in the Alito hearings, the namecalling and posturing isn't gaining any traction with Middle-America.

Care to clarify? I didn't hear any name-calling in the Alito hearings. All I heard were some tough questions directed at a guy who refused to admit his true views on things. Sadly, this is par for the course, as conservatives act as though it is entirely unreasonable to dare ask tough questions of a guy who is up for a lifetime appointment to the Supreme Court. Guess we should just bow down and bask in the glory of King George's eternal wisdom, eh?

I am in no way an Alito supporter nor am I a current supporter of GWB (although I will say I voted for him in 2000). The Alito hearings were a joke. Dems had over two months to prepare for the hearings and came up with NOTHING. All that happened was Senators gave speeches and Biden put on a hat. Oh. And Kennedy couldn't distinguish satire from reality.

Eight weeks of preparation and that's all they could come up with. And now we get the RATS line. Very well done, Progressives. You've tried the hard left tack. How about coming back to the center now.

My question is, how does the Court square this ruling with the Raich medical marijuana case that they flubbed (IMHO) last year? Any ideas? Not that I'm against this ruling; quite the opposite. But I am surprised by it.

Justice Thomas was also surprised by it - he wrote a separate dissent mostly pointing out this obvious hypocrisy. He also dissented from Raich on federalist grounds, so I don't know if he was just using this dissent as a platform, or if he really disagrees with the majority.

Here's the full opinion:

The issue in Raich was the limit of Congress's commerce clause authority- a constitutional question. The issue in the death with dignity act case is entirely different: a question of statutory interpretation, as Jack B. points out by noting that Congress can amend that statute. The only Justice who confusingly conflates the two fundamentally different issues is Thomas in his separate, lone dissent (He also joined Scalia's dissent with C.J. Roberts.) Of course, Justice Thomas doesn't make sense the vast majority of the time.

If the Democrats are dumb enough to run Hillary Clinton for President, the acronym will get a lot longer -- probably six or seven letters.

Funny you should mention HRC. I was giving some thought to throwing down the $60 next week to hear her speak. Turns out, however, that I'm gonna need every last penny of that to pay some scalper for the privilege of seeing Jeff Tweedy in February. Rats.

Eight weeks of preparation and that's all they could come up with. And now we get the RATS line. Very well done, Progressives. You've tried the hard left tack.

Wait, wait, wait. The reason they didn't come with anything to attack is not because they ran from the moderate point--it's because they embraced it! There were tons of areas where Alito could have been attacked on "progressive" grounds, and the Dems on the committee ran screaming from those. Biden, I agree, is a pathetic joke. But you can't simultaneously claim that the Dems were too easy on Alito and that they took the progressive tack.

If this is what Progressive campaign advisors such as yourself are advising candidates to spout...

No, this is what a guy with a middling sense-of-humor posts on a blog when he's trying to be funny before the first cup of coffee. Oh well, guess it wasn't.

Guess I'll let Bill McDonald do the one-liners from now on.

Just a reminder of why Sen. Wyden voted for Justice Roberts:

He repeated his view that Roberts would look favorably on the state's arguments defending Oregon's physician-assisted-suicide law. The Supreme Court will hear oral arguments Wednesday on the Bush administration's attempt to ban doctors from using federally regulated drugs to assist suicides.

Ron Wyden, R-Oregon.

Yeah. I was probably too harsh as well. So my apologies.

Seriously though, I'm pulling for Dems in 2006. I just hope you can get a message out there that resonates the middle while still staying true to your ideals.

"The only Justice who confusingly conflates the two fundamentally different issues is Thomas in his separate, lone dissent..."

No fan of Thomas' writing myself, I think this is a bit of a mischaracterization. The parties in this case abandoned their constitutional challenge in light of Raich, as Thomas points out on og. 62, n.2 of his dissent. Earlier in this litigation however, the constitutional challenge was on the table. Thomas' dissent is essentially a second dig at the Raich majority, against whom he dissented previously. In that earlier dissent Thomas raised the issue of state soverignty over welfare issues such as medicine. While I agree that the majority opinion is discussing statutory interpretation about executive enforcement powers, they are borrowing from language that would have felt very at home in Thomas' Raich dissent.

Just a reminder of why Sen. Wyden voted for Justice Roberts

I'm sure he's spending most of his time now trying to figure the best way to spin a "yes" vote for Scalito.

Hells yeah!!!

I for one am surprised and quite pleased.

I have supported this from the beginning. I have seen it applied. I continue to approve. I donate to support it. It is but another option applied. If you object, do not avail yourself of the option. It is not required.

Oh, yeah... Ashcroft.

Lest we all forget: John Ashcroft was appointed Attorney General of the United States on the strength of his having lost a re-election bid as a United States Senator to a dead man.

Remember, the people of the state Missouri turned him out for his opponent, who had died in an airplane crash six weeks before the election. The "Show Me" state voted for a dead man rather than return John Ashcroft to the U.S. Senate.

Didn't anybody think this was a clue?

What I find surprising is how few people (including people in the legal establishment) understand the endpoints of the basic disagreement between the majority and the dissenters.

If we're not going to enforce the nondelegation doctrine, the RATS say, any delegation to the Executive (implied or otherwise) gives any Executive officer with jurisdiction (here, the AG) the authority to interpret the statute in a manner that commands judicial deference.

Meanwhile, the majority hides the iron fist of its argument in a velvet glove. They have been very reluctant to state it clearly. But behind the majority's argument is the idea that interpretation is a legislative function which may be exercised only according to the terms of the Administrative Procedures Act and only "when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority."

You'll recognize that quote from United States v. Mead, repeated it today's case. When Justice Souter wrote it back in 2001, all the hacks in the academy went "boo hoo hoo, now administrative law is so complicated and muddled" (crying all the way to the publisher, no doubt). There's nothing complicated about it. Either you believe the Executive has some mystical inherent power to have the final word on any delegation, or you believe that Congress can customize the scope of its delegations.

None of this would matter if we could somehow enforce the nondelegation doctrine. We could sleep easy letting the Executive interpret as they please if that were the case. But that is not the world we live in. So we get either the majority's velvet glove check or the neo-monarchical fiat of the RATS' king. And even in the latter, my guess is that some of the RATS believe deep down that only the abuses of a king will restore nondelegation, which is why they push this line.

The key qoute today was from our own Republican - Gordon Smith.

"This case has run the full length of the American legal process, and the issue is now settled law. Regardless of my personal position on assisted suicide, Oregon’s law has been tested at every branch of our government and the judgment of Oregon’s voters has been affirmed. I accept the Supreme Court’s decision and Congress should do the same."

Learn more at

Godfry: fairness dictates you remind the reader the "dead man's" (aka Gov. Mel Carnahan) wife "Jean Carnahan" agreed to serve in her husband's stead in advance of election day. The acting governor agreed to appoint her to replace her husband in October 2000. click here for the CNN weblink or read the text below.

October 27, 2000
Web posted at: 6:41 p.m. EDT (2241 GMT)

SPRINGFIELD, Missouri (CNN) -- The widow of Missouri Gov. Mel Carnahan will announce Monday whether she is interested in accepting the Senate seat her husband was seeking when he died in a plane crash last week, she said Friday.

The late governor's name remains on the ballot in the Senate election because his death came too late to remove it under Missouri election law. If Carnahan gets more votes than the incumbent, Republican Sen. John Ashcroft, the state's new governor has said he will ask Jean Carnahan to serve for two years until a special election could be held.

"I would like to thank the countless people who have sent cards and letters of support and encouragement, both with regard to the recent tragedy and to the possibility that I might represent Missouri in the Senate in the event that Missourians cast their votes for my husband," Carnahan, who has never held elective office, said in a statement Friday.

She said that she would gather with her family over the weekend to discuss the possibility of serving in the Senate.

"If I decide to accept this challenge, it will be because I am ready to do this with my entire heart and soul, just as Mel did every day of his life," Carnahan said. "As I seek God's will for my life, I see each day more clearly. I still believe deeply in the cause for which my husband lived and died."

Those values, she said, are a "permanent part" of her life.

A two-term governor, Carnahan was in a neck-and-neck race with Ashcroft and considered a strong contender to help Democrats regain control of the Senate.


My guest this week is Eli Stutsman, the attorney for a physician and a pharmicist in Gonzalez v. oregon.

We discuss the decision, including the dissent, the medical marijuana "precedent", the impact nationally, the possible Congressional response, etc.

He is a first-rate appellate lawyer and a terrific guest.

Outlook Portland with Nick Fish, KWBP, 6:30 am on January 22.





As a lawyer/blogger, I get
to be a member of:

In Vino Veritas

Lange, Pinot Gris 2015
Kiona, Lemberger 2014
Willamette Valley, Pinot Gris 2015
Aix, Rosé de Provence 2016
MarchigĂĽe, Cabernet 2013
Inazío Irruzola, Getariako Txakolina Rosé 2015
Maso Canali, Pinot Grigio 2015
Campo Viejo, Rioja Reserva 2011
Kirkland, Côtes de Provence Rosé 2016
Cantele, Salice Salentino Reserva 2013
Whispering Angel, Côtes de Provence Rosé 2013
Avissi, Prosecco
Cleto Charli, Lambrusco di Sorbara Secco, Vecchia Modena
Pique Poul, Rosé 2016
Edmunds St. John, Bone-Jolly Rosé 2016
Stoller, Pinot Noir Rosé 2016
Chehalem, Inox Chardonnay 2015
The Four Graces, Pinot Gris 2015
GascĂłn, Colosal Red 2013
Cardwell Hill, Pinot Gris 2015
L'Ecole No. 41, Merlot 2013
Della Terra, Anonymus
Willamette Valley, Dijon Clone Chardonnay 2013
Wraith, Cabernet, Eidolon Estate 2012
Januik, Red 2015
Tomassi, Valpolicella, Rafaél, 2014
Sharecropper's Pinot Noir 2013
Helix, Pomatia Red Blend 2013
La Espera, Cabernet 2011
Campo Viejo, Rioja Reserva 2011
Villa Antinori, Toscana 2013
Locations, Spanish Red Wine
Locations, Argentinian Red Wine
La Antigua Clásico, Rioja 2011
Shatter, Grenache, Maury 2012
Argyle, Vintage Brut 2011
Abacela, Vintner's Blend #16 Abacela, Fiesta Tempranillo 2014
Benton Hill, Pinot Gris 2015
Primarius, Pinot Gris 2015
Januik, Merlot 2013
Napa Cellars, Cabernet 2013
J. Bookwalter, Protagonist 2012
LAN, Rioja Edicion Limitada 2011
Beaulieu, Cabernet, Rutherford 2009
Denada Cellars, Cabernet, Maipo Valley 2014
MarchigĂĽe, Cabernet, Colchagua Valley 2013
Oberon, Cabernet 2014
Hedges, Red Mountain 2012
Balboa, Rose of Grenache 2015
Ontañón, Rioja Reserva 2015
Three Horse Ranch, Pinot Gris 2014
Archery Summit, Vireton Pinot Gris 2014
Nelms Road, Merlot 2013
Chateau Ste. Michelle, Pinot Gris 2014
Conn Creek, Cabernet, Napa 2012
Conn Creek, Cabernet, Napa 2013
Villa Maria, Sauvignon Blanc 2015
G3, Cabernet 2013
Chateau Smith, Cabernet, Washington State 2014
Abacela, Vintner's Blend #16
Willamette Valley, Rose of Pinot Noir, Whole Clusters 2015
Albero, Bobal Rose 2015
Ca' del Baio Barbaresco Valgrande 2012
Goodfellow, Reserve Pinot Gris, Clover 2014
Lugana, San Benedetto 2014
Wente, Cabernet, Charles Wetmore 2011
La Espera, Cabernet 2011
King Estate, Pinot Gris 2015
Adelsheim, Pinot Gris 2015
Trader Joe's, Pinot Gris, Willamette Valley 2015
La Vite Lucente, Toscana Red 2013
St. Francis, Cabernet, Sonoma 2013
Kendall-Jackson, Pinot Noir, California 2013
Beaulieu, Cabernet, Napa Valley 2013
Erath, Pinot Noir, Estate Selection 2012
Abbot's Table, Columbia Valley 2014
Intrinsic, Cabernet 2014
Oyster Bay, Pinot Noir 2010
Occhipinti, SP68 Bianco 2014
Layer Cake, Shiraz 2013
Desert Wind, Ruah 2011
WillaKenzie, Pinot Gris 2014
Abacela, Fiesta Tempranillo 2013
Des Amis, Rose 2014
Dunham, Trautina 2012
RoxyAnn, Claret 2012
Del Ri, Claret 2012
Stoppa, Emilia, Red 2004
Primarius, Pinot Noir 2013
Domaines Bunan, Bandol Rose 2015
Albero, Bobal Rose 2015
Deer Creek, Pinot Gris 2015
Beaulieu, Rutherford Cabernet 2013
Archery Summit, Vireton Pinot Gris 2014
King Estate, Pinot Gris, Backbone 2014
Oberon, Napa Cabernet 2013
Apaltagua, Envero Carmenere Gran Reserva 2013
Chateau des Arnauds, Cuvee des Capucins 2012
Nine Hats, Red 2013
Benziger, Cabernet, Sonoma 2012
Roxy Ann, Claret 2012
Januik, Merlot 2012
Conundrum, White 2013
St. Francis, Sonoma Cabernet 2012

The Occasional Book

Marc Maron - Waiting for the Punch
Phil Stanford - Rose City Vice
Kenneth R. Feinberg - What is Life Worth?
Kent Haruf - Our Souls at Night
Peter Carey - True History of the Kelly Gang
Suzanne Collins - The Hunger Games
Amy Stewart - Girl Waits With Gun
Philip Roth - The Plot Against America
Norm Macdonald - Based on a True Story
Christopher Buckley - Boomsday
Ryan Holiday - The Obstacle is the Way
Ruth Sepetys - Between Shades of Gray
Richard Adams - Watership Down
Claire Vaye Watkins - Gold Fame Citrus
Markus Zusak - I am the Messenger
Anthony Doerr - All the Light We Cannot See
James Joyce - Dubliners
Cheryl Strayed - Torch
William Golding - Lord of the Flies
Saul Bellow - Mister Sammler's Planet
Phil Stanford - White House Call Girl
John Kaplan & Jon R. Waltz - The Trial of Jack Ruby
Kent Haruf - Eventide
David Halberstam - Summer of '49
Norman Mailer - The Naked and the Dead
Maria DermoČ—t - The Ten Thousand Things
William Faulkner - As I Lay Dying
Markus Zusak - The Book Thief
Christopher Buckley - Thank You for Smoking
William Shakespeare - Othello
Joseph Conrad - Heart of Darkness
Bill Bryson - A Short History of Nearly Everything
Cheryl Strayed - Tiny Beautiful Things
Sara Varon - Bake Sale
Stephen King - 11/22/63
Paul Goldstein - Errors and Omissions
Mark Twain - A Connecticut Yankee in King Arthur's Court
Steve Martin - Born Standing Up: A Comic's Life
Beverly Cleary - A Girl from Yamhill, a Memoir
Kent Haruf - Plainsong
Hope Larson - A Wrinkle in Time, the Graphic Novel
Rudyard Kipling - Kim
Peter Ames Carlin - Bruce
Fran Cannon Slayton - When the Whistle Blows
Neil Young - Waging Heavy Peace
Mark Bego - Aretha Franklin, the Queen of Soul (2012 ed.)
Jenny Lawson - Let's Pretend This Never Happened
J.D. Salinger - Franny and Zooey
Charles Dickens - A Christmas Carol
Timothy Egan - The Big Burn
Deborah Eisenberg - Transactions in a Foreign Currency
Kurt Vonnegut Jr. - Slaughterhouse Five
Kathryn Lance - Pandora's Genes
Cheryl Strayed - Wild
Fyodor Dostoyevsky - The Brothers Karamazov
Jack London - The House of Pride, and Other Tales of Hawaii
Jack Walker - The Extraordinary Rendition of Vincent Dellamaria
Colum McCann - Let the Great World Spin
Niccolò Machiavelli - The Prince
Harper Lee - To Kill a Mockingbird
Emma McLaughlin & Nicola Kraus - The Nanny Diaries
Brian Selznick - The Invention of Hugo Cabret
Sharon Creech - Walk Two Moons
Keith Richards - Life
F. Sionil Jose - Dusk
Natalie Babbitt - Tuck Everlasting
Justin Halpern - S#*t My Dad Says
Mark Herrmann - The Curmudgeon's Guide to Practicing Law
Barry Glassner - The Gospel of Food
Phil Stanford - The Peyton-Allan Files
Jesse Katz - The Opposite Field
Evelyn Waugh - Brideshead Revisited
J.K. Rowling - Harry Potter and the Sorcerer's Stone
David Sedaris - Holidays on Ice
Donald Miller - A Million Miles in a Thousand Years
Mitch Albom - Have a Little Faith
C.S. Lewis - The Magician's Nephew
F. Scott Fitzgerald - The Great Gatsby
William Shakespeare - A Midsummer Night's Dream
Ivan Doig - Bucking the Sun
Penda Diakité - I Lost My Tooth in Africa
Grace Lin - The Year of the Rat
Oscar Hijuelos - Mr. Ives' Christmas
Madeline L'Engle - A Wrinkle in Time
Steven Hart - The Last Three Miles
David Sedaris - Me Talk Pretty One Day
Karen Armstrong - The Spiral Staircase
Charles Larson - The Portland Murders
Adrian Wojnarowski - The Miracle of St. Anthony
William H. Colby - Long Goodbye
Steven D. Stark - Meet the Beatles
Phil Stanford - Portland Confidential
Rick Moody - Garden State
Jonathan Schwartz - All in Good Time
David Sedaris - Dress Your Family in Corduroy and Denim
Anthony Holden - Big Deal
Robert J. Spitzer - The Spirit of Leadership
James McManus - Positively Fifth Street
Jeff Noon - Vurt

Road Work

Miles run year to date: 5
At this date last year: 3
Total run in 2017: 113
In 2016: 155
In 2015: 271
In 2014: 401
In 2013: 257
In 2012: 129
In 2011: 113
In 2010: 125
In 2009: 67
In 2008: 28
In 2007: 113
In 2006: 100
In 2005: 149
In 2004: 204
In 2003: 269

Clicky Web Analytics