Orin Kerr noticed this paragraph in Justice Kennedy’s majority opinion in Gonzales v. Oregon, the Oregon assisted-suicide case decided yesterday, which ruled against Ashcroft and Gonzales’ attempts to restrict Oregon’s assisted-suicide laws by prosecuting doctors involved:
[T]he Attorney General claims extraordinary authority. If the Attorney General’s argument were correct, his power . . . would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General’s limited authority . . . but to have given him, just by implication, authority [over] an entire class of activity . . . .
Kennedy’s not a big fan of executive overreach, it would seem. He also adds: “The statutory terms. . . do not call on the Attorney General, or any other Executive official, to make an independent assessment of the meaning of federal law.” But that’s just the power the Bush administration has been claiming for itself over the past four years, especially with the president’s long series of “signing statements,” tacked on to bills as “independent assessment[s] of the meaning of federal law.” Right now, it seems, only Justices Scalia, Thomas, and Roberts are sympathetic to this argumentand one presumes we can add Samuel Alito if and when Congress confirms him.