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Tuesday, January 17, 2006

Gonzales v. Oregon: The Supreme Court Misses The Mark

This is the infamous Oregon assisted-suicide case where Attorney General Gonzales challenged the validity of the law under the Controlled Substances Act. In a surprising move, the Supreme Court--at least the six members of the majority--"rediscovered" the Tenth Amendment on this issue, and found in favor of Oregon. Justices Scalia, Thomas, and Roberts dissented. Justice Scalia wrote the dissent, joined by Chief Justice Roberts. Justice Thomas wrote a dissent of his own. Justice Kennedy wrote for the majority.

Aside from the italics to identify cases, all emphasis is mine.

The Court concludes that the Attorney General lacked authority to declare assisted suicide illicit under the Controlled Substances Act (CSA), because the CSA is concerned only with "illicit drug dealing and trafficking," ante, at 23 (emphasis added). This question-begging conclusion is obscured by a flurry of arguments that distort the statute and disregard settled principles of our interpretive jurisprudence.

Contrary to the Court's analysis, this case involves not one but three independently sufficient grounds for reversing the Ninth Circuit's judgment. First, the Attorney General's interpretation of "legitimate medical purpose" in 21 CFR §1306.04 (2005) (hereinafter Regulation) is clearly valid, given the substantial deference we must accord it under Auer v. Robbins,
519 U. S. 452, 461 (1997), and his two remaining conclusions follow naturally from this interpretation. See Part I, infra. Second, even if this interpretation of the Regulation is entitled to lesser deference or no deference at all, it is by far the most natural interpretation of the Regulation--whose validity is not challenged here. This interpretation is thus correct even upon de novo review. See Part II, infra. Third, even if that interpretation of the Regulation were incorrect, the Attorney General's independent interpretation of the statutory phrase "public interest" in 21 U. S. C. §§824(a) and 823(f), and his implicit interpretation of the statutory phrase "public health and safety" in §823(f)(5), are entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), and they are valid under Chevron. See Part III, infra. For these reasons, I respectfully dissent.

This was a case I touched on when it came up in early October. I cited my number one reason for this case to be ruled against Oregon. The short version is that it gives doctors the free reign to break their Hippocratic Oath. Now, I also acknowledged then that the Oath is irrelevant in the case; it isn't truly enforceable.

However, upon further review of the course of the last couple months, this case doesn't revolve around States' rights. It revolves around federalism. In short, the distribution of power between the main authority, and it's representative constituents. The central authority is, of course, the federal government. The constituents are the States. And the reason the CSA is key to the case is that drugs--whether approved for use by the public, or those deemed controlled and therefore illegal--falls under the purview of the federal government. That's what the Food and Drug Administration (FDA) handles.

The Interpretive Rule issued by the Attorney General (hereinafter Directive) provides in relevant part as follows:

"For the reasons set forth in the OLC Opinion, I hereby determine that assisting suicide is not a 'legitimate medical purpose' within the meaning of 21 CFR §1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the CSA. Such conduct by a physician registered to dispense controlled substances may 'render his registration ... inconsistent with the public interest' and therefore subject to possible suspension or revocation under 21 U. S. C. [§]824(a)(4)." 66 Fed. Reg. 56608 (2001).

The Directive thus purports to do three distinct things: (1) to interpret the phrase "legitimate medical purpose" in the Regulation to exclude physician-assisted suicide; (2) to determine that prescribing, dispensing, and administering federally controlled substances to assist suicide violates the CSA; and (3) to determine that participating in physician-assisted suicide may render a practitioner's registration "inconsistent with the public interest" within the meaning of 21 U. S. C. §§823(f) and 824(a)(4) (which incorporates §823(f) by reference). The Court's analysis suffers from an unremitting failure to distinguish among these distinct propositions in the Directive.

As an initial matter, the validity of the Regulation's interpretation of "prescription" in §829 to require a "legitimate medical purpose" is not at issue. Respondents conceded the validity of this interpretation in the lower court, see Oregon v. Ashcroft, 368 F. 3d 1118, 1133 (CA9 2004), and they have not challenged it here. By its assertion that the Regulation merely restates the statutory standard of 21 U. S. C. §830(b)(3)(A)(ii), see ante, at 10, the Court likewise accepts that the "legitimate medical purpose" interpretation for prescriptions is proper. See also ante, at 11 (referring to "legitimate medical purpose" as a "statutory phrase"). It is beyond dispute, then, that a "prescription" under §829 must issue for a "legitimate medical purpose."

This is why I love Justice Scalia. He cuts straight to the point, which would be the issue that the majority seemed to focus on. In Justice Kennedy's majority opinion, he argues that the CSA applies only to illicit activites. Justice Scalia pointed this out, but that's not the case. It applies to ALL drugs. Under the CSA, a "legitimate" medical purpose has to be established. Assisted suicide isn't considered such a purpose. As a matter of fact, suicide is still illegal in this country. In effect, had this not been challenged in court, the government would have agreed that suicide--assisted or otherwise--was permitted. This is not the case. However, the majority believes it to be so. They believe that the CSA can't prohibit a doctor from performing an assisted-suicide, ending the suffering of another. The problem is, and as Justice Scalia will point out, the CSA does exactly that.

Because the Regulation was promulgated by the Attorney General, and because the Directive purported to interpret the language of the Regulation, see 66 Fed. Reg. 56608, Auerthis case calls for the straightforward application of our rule that an agency's interpretation of its own regulations is "controlling unless plainly erroneous or inconsistent with the regulation." Auer, supra, at 461 (internal quotation marks omitted). The Court reasons that Auer is inapplicable because the Regulation "does little more than restate the terms of the statute itself." Ante, at 9. "Simply put," the Court asserts, "the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute." Ante, at 10.

To begin with, it is doubtful that any such exception to the Auer rule exists. The Court cites no authority for it, because there is none. To the contrary, our unanimous decision in Auer makes clear that broadly drawn regulations are entitled to no less respect than narrow ones. "A rule requiring the Secretary to construe his own regulations narrowly would make little sense, since he is free to write the regulations as broadly as he wishes, subject only to the limits imposed by the statute." 519 U. S., at 463 (emphasis added).

Even if there were an antiparroting canon, however, it would have no application here. The Court's description of 21 CFR §1306.04 (2005) as a regulation that merely "paraphrase[s] the statutory language," ante, at 10, is demonstrably false. In relevant part, the Regulation interprets the word "prescription" as it appears in 21 U. S. C. §829, which governs the dispensation of controlled substances other than those on Schedule I (which may not be dispensed at all). Entitled "[p]rescriptions," §829 requires, with certain exceptions not relevant here, "the written prescription of a practitioner" (usually a medical doctor) for the dispensation of Schedule II substances (§829(a)), "a written or oral prescription" for substances on Schedules III and IV (§829(b)), and no prescription but merely a "medical purpose" for the dispensation of Schedule V substances (§829(c)).

As used in this section, "prescription" is susceptible of at least three reasonable interpretations. First, it might mean any oral or written direction of a practitioner for the dispensation of drugs. See United States v. Moore,
423 U. S. 122, 137, n. 13 (1975) ("On its face §829 addresses only the form that a prescription must take... . [Section] 829 by its terms does not limit the authority of a practitioner"). Second, in light of the requirement of a "medical purpose" for the dispensation of Schedule V substances, see §829(c), it might mean a practitioner's oral or written direction for the dispensation of drugs that the practitioner believes to be for a legitimate medical purpose. See Webster's New International Dictionary 1954 (2d ed. 1950) (hereinafter Webster's Second) (defining "prescription" as "[a] written direction for the preparation and use of a medicine"); id., at 1527 (defining "medicine" as "[a]ny substance or preparation used in treating disease") (emphases added). Finally, "prescription" might refer to a practitioner's direction for the dispensation of drugs that serves an objectively legitimate medical purpose, regardless of the practitioner's subjective judgment about the legitimacy of the anticipated use. See ibid.

The Regulation at issue constricts or clarifies the statute by adopting the last and narrowest of these three possible interpretations of the undefined statutory term: "A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose ... ." 21 CFR §1306.04(a) (2005). We have previously acknowledged that the Regulation gives added content to the text of the statute: "The medical purpose requirement explicit in subsection (c) [of §829] could be implicit in subsections (a) and (b). Regulation §[1]306.04 makes it explicit." Moore, supra, at 137, n. 13.

The Court points out that the Regulation adopts some of the phrasing employed in unrelated sections of the statute. See ante, at 10. This is irrelevant. A regulation that significantly clarifies the meaning of an otherwise ambiguous statutory provision is not a "parroting" regulation, regardless of the sources that the agency draws upon for the clarification. Moreover, most of the statutory phrases that the Court cites as appearing in the Regulation, see ibid. (citing 21 U. S. C. §§812(b) (" 'currently accepted medical use' "), 829(c) (" 'medical purpose' "), 802(21) (" 'in the course of professional practice' ")), are inapposite because they do not "parrot" the only phrase in the Regulation that the Directive purported to construe. See 66 Fed. Reg. 56608 ("I hereby determine that assisting suicide is not a 'legitimate medical purpose' within the meaning of 21 CFR §1306.04 ..."). None of them includes the key word "legitimate," which gives the most direct support to the Directive's theory that §829(c) presupposes a uniform federal standard of medical practice.2

Since the Regulation does not run afowl (so to speak) of the Court's newly invented prohibition of "parroting"; and since the Directive represents the agency's own interpretation of that concededly valid regulation; the only question remaining is whether that interpretation is "plainly erroneous or inconsistent with the regulation"; otherwise, it is "controlling." Auer, supra, at 461 (internal quotation marks omitted). This is not a difficult question. The Directive is assuredly valid insofar as it interprets "prescription" to require a medical purpose that is "legitimate" as a matter of federal law--since that is an interpretation of "prescription" that we ourselves have adopted. Webb v. United States, 249 U. S. 96 (1919), was a prosecution under the Harrison Act of a doctor who wrote prescriptions of morphine "for the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use," id., at 99. The dispositive issue in the case was whether such authorizations were "prescriptions" within the meaning of §2(b) of the Harrison Act, predecessor to the CSA. Ibid. We held that "to call such an order for the use of morphine a physician's prescription would be so plain a perversion of meaning that no discussion of the subject is required." Id., at 99-100. Like the Directive, this interprets "prescription" to require medical purpose that is legitimate as a matter of federal law. And the Directive is also assuredly valid insofar as it interprets "legitimate medical purpose" as a matter of federal law to exclude physician-assisted suicide, because that is not only a permissible but indeed the most natural interpretation of that phrase. See Part II, infra.

Finally, I'm jumping to the final paragraphs 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.

For the above reasons, I respectfully dissent from the judgment of the Court.

In short (so those that have a hard time reading such decisions don't feel their eyes rolling into the backs of their heads) the dissenters agree that the primary argument made by the majority--that the Oregon law trumps the CSA--is not only inferior, but it's irrelevant. The federal government has authority over controlled substances. If these substances aren't being used for a legitimate purpose--and the dissenters agree that physician-assisted suicide isn't such a purpose--then these substances can't be prescribed, and the physician is breaking federal law.

This case never should have gone this way. The controlling factor in the case is the federal government's power to regulate these medications. And the promise that under the CSA, they would be used for legitimate purposes. A doctor in Oregon, who is abiding by the voter-passed initiative, is breaking federal law. Oregon can't remove these medications from the CSA to satisfy their law. They still fall under it. The doctor's can't use them, and each time they do, they're breaking the law.

Unfortunately, the majority sees things in a different light, and it's one that is skewed and colored through the lenses of progressive, judicial activism.

Publius II


Anonymous Anonymous said...

Thank you for the information on this far reaching decision. Frankly, I see the influence of foreign thinking by the majority. One of the building blocks of our country is the value of individual human life and faith in physicians to do everything within their power to safe it. Like Kelo, this case is an attack on the Constitution undermines the morality of our country. I'm not ignoring state rights under the 10th but Federal preempted the field. By advise is don't visit Oregon. Rawriter

6:50 PM  

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