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Ashcroft Kicks the Screen Door

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Jonathan Turley teaches law at George Washington University.

It was perhaps the last and most signature act of Atty. Gen. John Ashcroft. On his way out of the Justice Department last week, Ashcroft asked the U.S. Supreme Court to overturn the Oregon law on physician- assisted suicide. California is also considering such a law. Abandoning the core Republican belief in states’ rights, or federalism, Ashcroft wanted to impose one last moral tenet on Oregon and California -- two states that have been nothing short of an obsession for him.

The Oregon law, the Death With Dignity Act, presents the clearest conflict between the administration’s core constitutional and moral tenets. On paper, the president is committed to allowing each state to determine its own agenda and priorities in state matters. Yet Ashcroft (and the president) is personally opposed to assisted suicide. As with other such conflicts, Ashcroft followed his oft-cited “higher authority” in imposing a federal morality code on the states -- reducing federalism to a concept honored mainly in the breach and only when it produced the right outcome. State issues like assisted suicide are the forbidden fruit of the Constitution, social issues that may be irresistible for federal officials but which were left by the framers to each state to decide. Through federalism, states were assured that they could go their own way on such moral questions.

It is hard to imagine a clearer question of state law than the regulation of doctors and the rights of Oregonians who are terminally ill. Under the law, doctors must confirm that patients have less than six months to live and are competent to decide whether to end their suffering.

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Ashcroft’s effort to overturn the Oregon law violates an unwritten protocol for outgoing Cabinet members. It is like ordering a high-priced meal before running out and sticking a friend with the check. If the Supreme Court justices are true to their earlier rulings, the Justice Department will lose such a case and the nominee for attorney general, Alberto R. Gonzales, will take the legal loss during his term while Ashcroft takes the glory from the religious right.

The Oregon case should be a lasting lesson for liberals that federalism, which they have long opposed, is their only hope in resisting the federal mandates on issues such as gay marriage, stem cell research and assisted suicide. As a long advocate of federalism, I have become used to transient and opportunistic allies. Federalism tends to be the discovered philosophy of the politically disenfranchised and destitute. Call it blue-state federalism -- it may become this year’s most popular philosophical style in places as unlikely as California, Illinois and Massachusetts.

The assisted-suicide case would join a case to be heard by the Supreme Court this month, in which Ashcroft is challenging a California law permitting marijuana for medical purposes.

Since he was a senator, Ashcroft has seemed obsessed with the errant choices of citizens in Oregon and California -- often seeking federal overrides and corrective measures. Once attorney general, Ashcroft took on the role of uber-governor of both states. Indeed, not since Reconstruction had a federal official sought to exercise such control over a region.

Ashcroft’s last-minute appeal is his final moral broadside to California and Oregon. In the end, these two states proved to be the white whales to Ashcroft’s Ahab -- constant reminders of an uncompleted moral agenda. He left as he came to office: the unflinching and unrepentant zealot.

For liberals and libertarians, he personified the blind rage of the most extreme in the religious right. Whether it is covering up the female statues in the Great Hall of Justice or his painful singing “Let the Eagle Soar” (the song that he wrote), he was a godsend for liberals, like an off-key evangelical version of the Taliban.

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Liberals may soon loathe his passing like environmentalists loathed the passing of James Watt. He will be replaced by a man, Gonzales, who has spent his life avoiding any act that might be noticeable, let alone controversial. The policies are unlikely to change, only the image -- though Gonzales may ultimately take down Ashcroft’s burkas on the statues at the Great Hall of Justice.

Ashcroft can now lay his burden down. Indeed, he can now actually do politically what he has been denied constitutionally: He can run for governor of Oregon or California.

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