A Limbaugh hoot

Anyone interested in the concept of interpretation should listen to Limbaugh's first 15 minutes today. I've written before how clumsy the Master is when he tries to address legal questions, and today's effort is a classic. It's enough to make you cry tears of laughter.

The monologue is about the feds' effort to invalidate Oregon's assisted suicide laws (albeit by a rather ham-fisted, indirect method). At the surface level (which is also likely to be the end result, intellectually), it's a near impossible case to make for federal intervention. The policy may be awful, it may be unwise, it might even be downright hideous and evil, but Oregon likely has the legal authority to do this.

Limbaugh starts out, reasonably enough, with the idea that federalism does not mean the states do everything, that there is plenty of room for many federal, which is to say, national responsibilities.

But he runs right off the rails trying to justify the thing and doesn't manage to hit a single legal concept along the way.

This will truly be a test of Roberts' interest in Rehnquist's federalist jurisprudence. I'm sad to say that LAGuy is likely to be proven right, in his cynical view, when it comes to Scalia, in that Nino won't recognize the state power (and if he does, will we be able to attribute it to a federalist Roberts working his intellectual and principled wiles on our erstwhile hero?). O'Connor might, if she's around when the decision is taken. Best case, Roberts and Thomas are likley yes votes, worst case, Thomas writes alone. Unless they look at it through something other than a Commerce Clause lens, you can count Souter, Breyer, Ginsburg and Stevens out. That leaves Kennedy and Miers.

Kennedy is possible, I suppose, but he joined the majority in Raich (c'mon Roberts, you can sweet talk him, too). Nobody knows anything about Miers, but it would be dumb luck if she supported state power against the Commerce Clause in this context. If I had to bet, I'd say 7-2 Oregon loses. What I hope, is 5-4 Oregon wins, or maybe one of the libs can be peeled away on pro-death culture. But of course, that would not be a Commerce Clause decision, at least in plurality.

But that's for the future, when we're likely to be reporting, sadly, that Rehnquist, qua Lopez, is dead. Today's entertainment is in Limbaugh. His argument is the very caricature of what LAGuy says strict constructionists such as Scalia or Bork do. Apparently, not only would Limbaugh say that Roe was wrongly decided, and "life" issues should be left to the states, but he'd take it a notch further and that Roe's very polarity should be reversed: Not only do the feds have this power, but they have the duty to mandate in favor of life. The New Roe: You must make babies and keep old people's tickers going, damn the consequences. You know, I don't object to Rush's having that view or making that argument as a matter of what is "right," but if we can't find Roe in the Constitution today, we surely can't find Limbaugh's argument in the Constitution tomorrow.