The Oregon case

Like Rob, I'm a big fan of both subsidiarity and the culture of life.  And, I agree that the Court's decision today in Gonzalez v. Oregon regarding federal regulation of drugs used for physician-assisted suicide provides an occasion for us to think about the two ideas.  (It occurs to me, for instance, that subsidiarity is a principle that exists for the sake of the common good -- which must exclude, in my view, laws that exempt vulnerable people from the protection of otherwise-generally-applicable homicide laws -- and not a good-in-itself that we should balance against the obligation to protect human life from violence).   

That said, I cannot forget that the case was supposed to be about a question of administrative law -- i.e., about the deference to be accorded to this agency's concededly reasonable interpretation of a regulation under the Controlled Substances Act.  And, on this technical matter, it seems to me that Justice Scalia makes mincemeat of Justice Kennedy (who was, perhaps, a bit too eager to vindicate what he saw as subsidiarity values?).

Putting aside the merits of the Court's resolution of the question actually presented, I was struck by the concluding passage of Justice Scalia's dissent:

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. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.

Most of this seems right to me.  But, is so clear that the federal government lacks the power, under the Fourteenth Amendment, to prohibit assisted suicide, insofar as legal regime's like Oregon's in effect single out a vulnerable class of persons for reduced protection from homicide laws?  Constitutional Law teachers, what do you think?