[Paleopsych] NYT: Justices Reject U.S. Bid to Block Assisted Suicide

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Justices Reject U.S. Bid to Block Assisted Suicide
http://www.nytimes.com/2006/01/18/politics/politicsspecial1/18scotus.html

[News analysis from the Times follows, then the decision and dissent. It 
doesn't seem that this decision marks a major change in federal-state 
relations nor a development in the law for assisted suicide. These issues 
will loom larger in the future. But at least it's an indication of how the 
new court might be moving. Clarence Thomas's dissent is at the very end. 
He mostly points out the hypocrisy of the liberal judges. I had hoped he'd 
have been a consistent Federalist, which would have meant refusing 
jurisdiction for most of the cases brought before the federal Supreme 
Court.

[If you have not read any court decisions, this is a good one to read. 
These decisions rarely, if ever, come up to the rigor of the math you used 
in high school geometry and algebra, which left a lot to be desired, but I 
won't go into that now. But legal reasoning is much, much worse from even 
the somewhat relaxed standards of high school math.

[The business of the law must, nevertheless, go forward. It involves 
different skills, most basically, an ability to make fine distinctions 
(between legal and illegal). This is different from math and logic, which 
concentrates on exact rigor.

[If the law says A is legal and B illegal, what about A 1/2? Arguments for 
both can be made, and so often it is the side with the thicker stack that 
wins the day, even if exactly zero arguments are logical by the standards 
of high school math. Even refusing jurisdiction, I suspect.

[High school students, those among the cognitive elite (top 5%) at any 
rate, should study law as well as math. The more ways you learn how to 
reason, the better you will be in life. The content does not matter nearly 
so much as the training. Orthodox Jews often claim that studying the 
Talmud makes them better thinkers. I find that this sort of hair splitting 
is not the same as that involved in the law and of little use to me. In 
fact, a lot of writing by Jewish authors takes on this flavor and too many 
books written by them irritate me as failing to get to the point. (I said 
too many: lots of books by Jews very much do get to the point. But Philip 
Wiener's _Evolution and the Founders of Pragmatism_ (1972) is one of those 
bad books, while Cynthia Eagle Russett's _Darwin in America_ (1965) is not 
only one of the ten books that influence me the most, but she accomplished 
on one chapter of that book what Wiener could not in an entire book. And 
her chapter on time got to the point, while Stephen Toulman's _The 
Discovery of Time_ did not.

[I attribute this to Talmudic reasoning doing a fine job of keeping the 
community of Jews together and with raising their IQ. (Just when this 
happened, I'd love to know.) But as we know from religions generally, the 
social binding function can rest upon sheer rumble bumble. Well, not 
totally sheer, as David Sloan Wilson has shown in _Darwin's Cathedral_ 
(which book restores functionalism to sociology), because the moral 
content of religions that have survived tend to be functional. This means 
that the practices that have grown up in a religion, stray from the 
founding documents as they do, are as important in understanding the 
religion as its origins.

[And this is the post-modernist critique of historicism, I think. Time, or 
rather the cumulative causation, was first appreciated in the 18th 
century, as Russett (and probably Toulman) showed. It is one of the major 
deep ideas in our Darwinian civilization. But the pomos went to far, and 
so there's something called the New Historicism. I have peeked into this 
only slightly.

[Anyhow, further your education by reading the decision.

[Oh, Jews are vastly overrepresented in the legal profession, as everyone 
knows. Question: are they still overrepresented when IQ is factored out? 
During the early days of our great Republic, there were factions favoring 
the retention of the British common law and those who wanted to distance 
themselves from the hated mother country as much as possible. I'm glad the 
latter faction did not succeed. Perry Miller, in _The Law in Early 
America_ (something like that. He was one of the greats among historians 
of early America) quoted one of those in the breakaway faction as 
comparing the endless layers of common law court decisions *unfavorably* 
to the Talmud (about which, I would guess, the knew nearly nothing).]

By LINDA GREENHOUSE

WASHINGTON, Jan. 17 - The Supreme Court removed an obstacle on
Tuesday to state efforts to authorize physician-assisted suicide,
ruling 6 to 3 that John Ashcroft, the former attorney general,
acted without legal authority when he threw the federal
government's weight against the Death With Dignity Act in Oregon
five years ago.

With the new chief justice, John G. Roberts Jr., in dissent in the
most high-profile case since he joined the court, the decision
lifted a major barrier to state initiatives like the one in Oregon,
which has the only assisted-suicide law in the country. [News
analysis, Page A16.]

Justice Anthony M. Kennedy's majority opinion did not say that
Congress could not act to block such laws, only that it had not
given Mr. Ashcroft the "extraordinary authority" that he claimed
when he threatened Oregon doctors who followed the state law with
losing their federal prescription-writing privileges.

While the court's decision was based on standard principles of
administrative law, and not on the Constitution, it was clearly
influenced by the majority's view that the regulation of medical
practice belonged, as a general matter, to the states. Mr. Ashcroft
acted contrary to "the background principles of our federal
system," Justice Kennedy said in his 28-page opinion.

The decision on Tuesday upheld rulings by two lower federal courts.
Mr. Ashcroft, while attorney general, appealed to the Supreme Court
in November 2004. His successor, Alberto R. Gonzales, embraced his
position and pursued the appeal after the justices agreed last
February to hear the case.

Chief Justice Roberts did not write a dissenting opinion, instead
signing a dissent written by Justice Antonin Scalia. For those
eager for any hint about the new chief justice's predilections, his
silent joining of this strongly worded opinion was intriguing. When
the case was argued on Oct. 5, his second day on the bench, Chief
Justice Roberts was an active participant but did not tip his hand.

At his confirmation hearing, he had declined to answer questions
about his personal views on issues like assisted suicide, saying a
judge's views and values should play no role in his judicial
decisions.

Justice Clarence Thomas did write a dissenting opinion, saying it
was "perplexing to say the least" to find the court interpreting
federal drug law narrowly in this instance when only months ago, it
upheld broad federal authority to prevent states from authorizing
the use of marijuana for medical purposes.

Oregon voters approved the Death With Dignity Act in 1994 and
affirmed it 1997. The law says that doctors who follow specific
procedures may prescribe lethal doses of federally regulated
medications to help their mentally competent, terminally ill
patients end their lives. Through 2004, 325 people had obtained the
lethal prescriptions, and 208 had used them.

When the Oregon measure took effect, Mr. Ashcroft was a senator
from Missouri. Along with other members of Congress, he asked the
Clinton administration to take steps to block the law. Attorney
General Janet Reno refused, writing to Congress in June 1998 to say
she had no authority to act because there was no evidence that
Congress "intended to displace the states as the primary regulators
of the medical profession." Mr. Ashcroft then co-sponsored a bill
to give the government this authority, but it did not pass.

As attorney general, Mr. Ashcroft announced in November 2001 that
doctors who prescribed lethal doses of drugs for the purpose of
assisting a suicide risked losing their federal licenses to
prescribe all "controlled substances." Without such licenses,
doctors would find it difficult to practice medicine because
controlled substances include many prescription pain relievers and
other commonly used medications.

Oregon sued to block the new rule, joined by a doctor, a pharmacist
and several terminally ill patients.

As authority for his action, Mr. Ashcroft invoked the Controlled
Substances Act, a 1970 law that established the framework for
federal drug policy, as well as a regulation issued by the Justice
Department the following year that put the law into effect. The
regulation requires that every prescription for a controlled
substance "be issued for a legitimate medical purpose." Assisted
suicide is "not a legitimate medical purpose," Mr. Ashcroft said.

In his opinion on Tuesday, Gonzales v. Oregon, No. 04-623, Justice
Kennedy emphasized, with evident disapproval, the unilateral nature
of Mr. Ashcroft's action, taken "without consulting Oregon or
apparently anyone outside his department." The attorney general's
rule was not entitled to the deference the court usually gave to
interpretations of governing statutes by executive branch
officials, he said, because Congress had not given the attorney
general the authority he was invoking.

"The authority claimed by the attorney general is both beyond his
expertise and incongruous with the statutory purposes and design,"
Justice Kennedy said.

Justice Scalia, in his dissenting opinion, took issue with the
argument that Congress could not have intended to delegate medical
judgments of this sort to the attorney general. The legitimacy of
physician-assisted suicide "ultimately rests, not on 'science' or
'medicine,' but on a naked value judgment," he said, adding, "It no
more depends upon a 'quintessentially medical judgment' than does
the legitimacy of polygamy or eugenic infanticide."

Justice Scalia said Mr. Ashcroft's action was "the most reasonable
interpretation" of the statute because "virtually every relevant
source of authoritative meaning confirms that the phrase
'legitimate medical purpose' does not include intentionally
assisting suicide."

In the few months since the case was argued on Oct. 5, the question
of how skeptically the Supreme Court will be willing to examine the
exercise of power by the executive branch has become considerably
more prominent. This issue also seemed to mark a divide between the
majority and the dissent.

In his opinion, Justice Kennedy said that Mr. Ashcroft was claiming
the "extraordinary authority" to declare as criminal actions that
Congress had not designated as crimes, and that he was seeking "a
radical shift of authority from the states to the federal
government to define general standards of medical practice in every
locality."

But Congress had no such intent in passing the Controlled
Substances Act, Justice Kennedy said. "The structure and operation
of the C.S.A. presume and rely upon a functioning medical
profession regulated under the states' police powers," he said,
adding that "Oregon's regime is an example of the state regulation
of medical practice that the C.S.A. presupposes."

Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter,
Ruth Bader Ginsburg and Stephen G. Breyer signed the majority
opinion.

The court was clearly aware that it was venturing into "an earnest
and profound debate," as Justice Kennedy noted, quoting from the
court's 1997 opinion in an assisted-suicide case. In that case,
Washington v. Glucksberg, the court said that the Constitution did
not convey a right to assistance in dying, but that states were
free to experiment with the issue. "The dispute before us," Justice
Kennedy said, "is in part a product of this political and moral
debate."

Scott McClellan, the White House press secretary, said Tuesday, "We
are disappointed at the decision." Mr. McClellan added, "The
president remains fully committed to building a culture of life, a
culture of life that is built on valuing life at all stages."

Fraught Issue, but Narrow Ruling in Oregon Suicide Case
http://www.nytimes.com/2006/01/18/national/18oregon.html

News Analysis
By TIMOTHY EGAN and ADAM LIPTAK

PORTLAND, Ore., Jan. 17 - Just 30 terminally ill people exercise a
right each year that is unique in America to the state of Oregon,
hastening their deaths with a lethal dose of drugs prescribed by
doctors.

The Supreme Court decision on Tuesday rejecting the Justice
Department's effort to block the state's Death With Dignity Act
will allow such suicides to continue, but it may not have the broad
impact people on both sides of the debate are predicting.

There is no reason to think that the pace of physician-assisted
suicides will quicken in Oregon. And the decision lends little
support, one way or the other, to the efforts to enact similar laws
around the country that have stalled since the Oregon law was
enacted in 1994.

The Supreme Court's ruling was, in fact, notably focused and
technical. It did not address whether there is a constitutional
right to die. It did not say that Congress was powerless to
override state laws that allow doctors to help their patients end
their lives.

It said only that a particular federal law, the Controlled
Substances Act, which is mainly concerned with drug abuse and
illegal drug trafficking, had not given John Ashcroft, then the
attorney general, the authority to punish Oregon doctors who
complied with requests under the state's law. The law allows
mentally competent, terminally ill patients to ask their doctors
for lethal drugs.

"What the court decision means is simply that you won't have
federal agents trying to put an end to this in the state of
Oregon," said Dr. Timothy E. Quill, a professor of medicine and
psychiatry at the University of Rochester, who is a prominent
supporter of physician-assisted suicide. "We were very fearful of
what might have happened had the ruling gone the other way."

Here in Oregon, the issue was initially contentious, passed by a
bare margin in 1994. But the more that people outside the state
criticized the law, the more support it gained here. When it came
up for a second referendum in 1997, it was upheld 60 to 40.

"I would not expect to see an increase in doctor-assisted suicides
here," said Mary Williams, Oregon's solicitor general. "But I do
expect more states will at least have discussion now."

But states have been free to enact such laws, and they have not
followed Oregon's example. Mr. Ashcroft did not issue his
interpretation of the Controlled Substances Act until 2001, and it
was soon enjoined. The federal government lost in the courts every
step of the way.

One question now is whether the debate will move from the court to
Congress. Peg Sandeen, executive director of the Death With Dignity
National Center in Portland, said her group would move to push
legislation or voter initiatives in several states.

But Ms. Sandeen said the organization was concerned that "a
Congress that would intervene in the death of Terri Schiavo" might
be galvanized into action by this decision.

Still, Tuesday's decision may prompt lawmakers in some states to
give the matter a fresh look.

"This decision gives the green light to the rest of the nation to
move forward with assisted-suicide laws," said Mathew D. Staver,
president of Liberty Counsel, which filed a brief supporting the
federal government in the Oregon case. "This particular case was
either going to close the door or to open it, and it opened it."

In the handful of states where a similar measure has been under
consideration, supporters said they hoped the decision would help.

"This will be a tremendous momentum builder for Vermont and other
states who want to bring compassionate care to end-of-life issues,"
said Dr. David Babbott, a board member of Death With Dignity
Vermont.

Opponents of assisted suicide said Tuesday's decision was a narrow
and technical one that did not endorse any particular approach to
these issues.

"I don't think its impact will be great," Dr. Robert D. Orr, the
president of the Vermont Alliance for Ethical Healthcare, said of
the decision. "Some have misunderstood the Oregon case as a
challenge to the Oregon statute itself."

The Oregon law was initially held up by an injunction, and not
fully put into effect until 1998. Since then, through 2004, a total
of 208 people have taken their lives by lethal injection with a
physician-prescribed drug, usually a barbiturate.

Critics had said Oregon would become a suicide center, with people
flying in to end their lives. They also predicted that the law
would be unfairly used against uneducated people or those without
health insurance or adequate medical choices.

In the seven full years since the law has been in effect and
records have been kept, more than 60 percent of those who have
killed themselves have had some college education, the state
reported.

Nora Miller, whose husband, Rick, took his life here in Portland in
1999 after he was given less than six months to live with a
diagnosis of terminal lung cancer, said the Oregon law allowed for
a peaceful and relatively pain-free end to his life.

"He was worried about being unconscious and completely out of it,"
said Ms. Miller, whose husband was 52. "But it was as good a death
as he could have hoped for."

She praised the court decision as a backing of individual liberty.

"This country was founded on the idea that you should be able to
make these kinds of decisions without government interference," Ms.
Miller said.

But the leader of a group of Oregon physicians who have long
opposed the measure, Dr. Kenneth Stevens, said the medical
community had long had ways to help people deal with pain at the
end of their lives.

"I've been taking care of cancer patients for more than 30 years,"
Dr. Stevens said, "and I feel helping people kill themselves is not
something doctors should be doing."

Gov. Theodore R. Kulongoski of Oregon said one effect of the
decision would be to allow innovative states like Oregon to
continue to be laboratories for new ideas.

"The U.S. Supreme Court recognized the delicate balance between our
federal system and the right of the states to be the crucibles for
new ideas and new ways to meet the changing needs of their
citizens," Mr. Kulongoski said.

Timothy Egan reported from Portland for this article, and Adam
Liptak from New York.

----------------

ALBERTO R. GONZALES, ATTORNEY GENERAL, ET AL., PETITIONERS v. OREGON ET 
AL.
No. 04-623
SUPREME COURT OF THE UNITED STATES

October 5, 2005, Argued
January 17, 2006, Decided

NOTICE:  [*1]

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT. Oregon v. Ashcroft, 368 F.3d 1118, 2004 U.S. App. 
LEXIS 10349 (9th Cir. Or., 2004)


DISPOSITION: Affirmed.

CORE TERMS: regulation, prescription, registration, suicide, Interpretive 
Rule, public interest, deference, medical practice, delegation, 
dispensing, physician-assisted, practitioner, patient, public health and 
safety, medicine, scheduling, state law, doctor, professional practice, 
drug abuse, deregister, addiction, dispense, dispensation, ambiguous, 
assisting, deregistration, illegitimate, scientific, expertise

SYLLABUS: The Controlled Substances Act (CSA or Act), which was enacted in 
1970 with the main objectives of combating drug abuse and controlling 
legitimate and illegitimate traffic in controlled substances, 
criminalizes, inter alia, the unauthorized distribution and dispensation 
of substances classified in any of its five schedules. The Attorney 
General may add, remove, or reschedule substances only after making 
particular findings, and on scientific and medical matters, he must accept 
the findings of the Secretary of Health and Human Services (Secretary). 
These proceedings must be on the record after an opportunity for comment. 
The dispute [*2]  here involves controlled substances listed in Schedule 
II, which are generally available only by written prescription, 21 U.S.C. 
§ 829(a). A 1971 regulation promulgated by the Attorney General requires 
that such prescriptions be used "for a legitimate medical purpose by an 
individual practitioner acting in the usual course of his professional 
practice." 21 CFR § 1306.04. To prevent diversion of controlled 
substances, the CSA regulates the activity of physicians, who must 
register in accordance with rules and regulations promulgated by the 
Attorney General. He may deny, suspend, or revoke a registration that, as 
relevant here, would be "inconsistent with the public interest." 21 U.S.C. 
§§ 824(a)(4), 822(a)(2). In determining consistency with the public 
interest, he must consider five factors, including the State's 
recommendation, compliance with state, federal, and local law regarding 
controlled substances, and "public health and safety." § 823(f). The CSA 
explicitly contemplates a role for the States in regulating controlled 
substances. See § 903.

The Oregon Death With Dignity Act (ODWDA) exempts from civil or criminal 
liability [*3]  state-licensed physicians who, in compliance with ODWDA's 
specific safeguards, dispense or prescribe a lethal dose of drugs upon the 
request of a terminally ill patient. In 2001, the Attorney General issued 
an Interpretive Rule to address the implementation and enforcement of the 
CSA with respect to ODWDA, declaring that using controlled substances to 
assist suicide is not a legitimate medical practice and that dispensing or 
prescribing them for this purpose is unlawful under the CSA. The State, a 
physician, a pharmacist, and some terminally ill state residents 
challenged the Rule. The District Court permanently enjoined its 
enforcement. The Ninth Circuit invalidated the Rule, reasoning that, by 
making a medical procedure authorized under Oregon law a federal offense, 
it altered the balance between the States and the Federal Government 
without the requisite clear statement that the CSA authorized the action; 
and in the alternative, that the Rule could not be squared with the CSA's 
plain language, which targets only conventional drug abuse and excludes 
the Attorney General from medical policy decisions.

Held: The CSA does not allow the Attorney General to prohibit doctors from 
[*4]  prescribing regulated drugs for use in physician-assisted suicide 
under state law permitting the procedure. Pp. 8-28.

(a) An administrative rule interpreting the issuing agency's own ambiguous 
regulation may receive substantial deference. Auer v. Robbins, 519 U.S. 
452, 461-463, 117 S. Ct. 905, 137 L. Ed. 2d 79. So may an interpretation 
of an ambiguous statute, Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 
842-845, 104 S. Ct. 2778, 81 L. Ed. 2d 694, but only "when it appears that 
Congress delegated authority to the agency generally to make rules 
carrying the force of law, and that the agency interpretation claiming 
deference was promulgated in the exercise of that authority," United 
States v. Mead Corp., 533 U.S. 218, 226-227, 121 S. Ct. 2164, 150 L. Ed. 
2d 292. Otherwise, the interpretation is "entitled to respect" only to the 
extent it has the "power to persuade." Skidmore v. Swift & Co., 323 U.S. 
134, 140, 65 S. Ct. 161, 89 L. Ed. 124. Pp. 8-9.

(b) The Interpretive Rule at issue is not entitled to Auer deference as an 
interpretation of 21 CFR § 1306.04. Unlike the underlying regulations in 
Auer, which gave specificity to a statutory scheme the Secretary of Labor 
was charged with [*5]  enforcing and reflected the Labor Department's 
considerable experience and expertise, the underlying regulation here does 
little more than restate the terms of the statute itself. The CSA allows 
prescription of drugs that have a "currently accepted medical use," 21 
U.S.C. § 812(b); requires a "medical purpose" for dispensing the least 
controlled substances of those on the schedules, § 829(c); and defines a 
"valid prescription" as one "issued for a legitimate medical purpose," 21 
U.S.C. A. § 830(b)(3)(A)(ii). Similarly, physicians are considered 
practitioners if they dispense controlled substances "in the course of 
professional practice." 21 U.S.C. § 802(21). The regulation just repeats 
two of these statutory phrases and attempts to summarize the others. An 
agency does not acquire special authority to interpret its own words when, 
instead of using its expertise and experience to formulate a regulation, 
it has elected merely to paraphrase the statutory language. Furthermore, 
any statutory authority for the Interpretive Rule would have to come from 
1984 CSA amendments adding the "public interest" requirement, but 21 CFR § 
1306.04 [*6]  was adopted in 1971. That the current interpretation runs 
counter to the intent at the time of the regulation's promulgation is an 
additional reason why Auer deference is unwarranted. Pp. 9-11.

(c) The Interpretive Rule is also not entitled to Chevron deference. The 
statutory phrase "legitimate medical purpose" is ambiguous in the relevant 
sense. However, Chevron deference is not accorded merely because the 
statute is ambiguous and an administrative official is involved. A rule 
must be promulgated pursuant to authority Congress has delegated to the 
official. The specific respects in which the Attorney General is 
authorized to make rules under the CSA show that he is not authorized to 
make a rule declaring illegitimate a medical standard for patient care and 
treatment specifically authorized under state law. Congress delegated to 
the Attorney General only the authority to promulgate rules relating to 
"registration" and "control" of the dispensing of controlled substances, 
21 U.S.C. A. § 821, and "for the efficient execution of his [statutory] 
functions," 21 U.S.C. § 871(b). Control means "to add a . . .  [*7] 
substance to a schedule," § 802(5), following specified procedures. 
Because the Interpretive Rule does not concern scheduling of substances 
and was not issued under the required procedures, it cannot fall under the 
Attorney General's control authority. Even if "control" were understood to 
signify something other than its statutory definition, it could not 
support the Interpretive Rule. Nor can the Interpretive Rule be justified 
under the CSA's registration provisions. It does not undertake the Act's 
five-factor analysis for determining when registration is "inconsistent 
with the public interest," § 823(f), and it deals with much more than 
registration. It purports to declare that using controlled substances for 
physician-assisted suicide is a crime, an authority going well beyond the 
Attorney General's statutory power to register or deregister physicians. 
It would be anomalous for Congress to have painstakingly described the 
Attorney General's limited authority to deregister a single physician or 
schedule a single drug, but to have given him, just by implication, 
authority to declare an entire class of activity outside the course of 
professional practice and therefore a criminal [*8]  violation of the CSA. 
It is not enough that "public interest," "public health and safety," and 
"Federal law" are used in the part of the Act over which the Attorney 
General has authority. Cf. Sutton v. United Air Lines, Inc., 527 U.S. 471, 
119 S. Ct. 2139, 144 L. Ed. 2d 450. The first two terms do not call on the 
Attorney General, or any Executive official, to make an independent 
assessment of the meaning of federal law. The Attorney General did not 
base the Interpretive Rule on an application of the five-factor test 
generally, or the "public health and safety" factor specifically. Even if 
he had, it is doubtful that he could cite those factors to deregister a 
physician simply because he deemed a controversial practice permitted by 
state law to have an illegitimate medical purpose. The federal-law factor 
requires the Attorney General to decide "compliance" with the law but does 
not suggest that he may decide what the law is. To say that he can define 
the substantive standards of medical practice as part of his authority 
would also put 21 U.S.C. § 871(b) in considerable tension with the 
narrowly defined control and registration delegation. It would go, 
moreover, against the [*9]  plain language of the text to treat a 
delegation for the "execution" of his functions as a further delegation to 
define other functions well beyond the Act's specific grants of authority. 
The authority desired by the Government is inconsistent with the Act's 
design in other fundamental respects, e.g., the Attorney General must 
share power with, and in some respect defer to, the Secretary, whose 
functions are likewise delineated and confined by the Act. Postenactment 
congressional commentary on the CSA's regulation of medical practice is 
also at odds with the Attorney General's claimed authority. The 
Government's claim that the Attorney General's decision is a legal, not 
medical, one does not suffice, for the Interpretive Rule places extensive 
reliance on medical judgments and views of the medical community in 
concluding that assisted suicide is not a legitimate medical purpose. The 
idea that Congress gave him such broad and unusual authority through an 
implicit delegation is not sustainable. The importance of the issue of 
physician-assisted suicide makes the oblique form of the claimed 
delegation all the more suspect. Pp. 11-22.

(d) The Attorney General's opinion is unpersuasive [*10]  under Skidmore. 
The CSA and this Court's case law amply support the conclusion that 
Congress regulates medical practice insofar as it bars doctors from using 
their prescription-writing powers as a means to engage in illicit drug 
dealing and trafficking as conventionally understood. Beyond this, the Act 
manifests no intent to regulate the practice of medicine generally, which 
is understandable given federalism's structure and limitations. The CSA's 
structure and operation presume and rely upon a functioning medical 
profession regulated under the States' police powers. The Federal 
Government can set uniform standards for regulating health and safety. In 
connection with the CSA, however, the only provision in which Congress set 
general, uniform medical practice standards, 42 U.S.C. § 290bb-2a, 
strengthens the understanding of the CSA as a statute combating 
recreational drug abuse, and also indicates that when Congress wants to 
regulate medical practice in the given scheme, it does so by explicit 
statutory language. The difficulty in defending the Attorney General's 
declaration that the CSA impliedly criminalizes physician-assisted suicide 
is compounded by [*11]  the Act's consistent delegation of medical 
judgments to the Secretary and its otherwise careful allocation of powers 
for enforcing the CSA's limited objectives. The Government's contention 
that the terms "medical" or "medicine" refer to a healing or curative art, 
and thus cannot embrace the intentional hastening of a patient's death, 
rests on a reading of 21 U.S.C. § 829(a)'s prescription requirement 
without the illumination of the rest of the statute. Viewed in context, 
that requirement is better understood as ensuring that patients use 
controlled substances under a doctor's supervision so as to prevent 
addiction and recreational abuse. To read prescriptions for assisted 
suicide as "drug abuse" under the CSA is discordant with the phrase's 
consistent use throughout the Act, not to mention its ordinary meaning. 
The Government's interpretation of the prescription requirement also fails 
under the objection that the Attorney General is an unlikely recipient of 
such broad authority, given the Secretary's primacy in shaping medical 
policy under the CSA and the Act's otherwise careful allocation of 
decisionmaking powers. Pp. 22-28.

368 F.3d 1118 [*12]  ,affirmed.

JUDGES: KENNEDY, J., delivered the opinion of the Court, in which STEVENS, 
O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a 
dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined. 
THOMAS, J., filed a dissenting opinion.

OPINIONBY: KENNEDY

OPINION: JUSTICE KENNEDY delivered the opinion of the Court.

The question before us is whether the Controlled Substances Act allows the 
United States Attorney General to prohibit doctors from prescribing 
regulated drugs for use in physician-assisted suicide, notwithstanding a 
state law permitting the procedure. As the Court has observed, "Americans 
are engaged in an earnest and profound debate about the morality, 
legality, and practicality of physician-assisted suicide." Washington v. 
Glucksberg, 521 U.S. 702, 735, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. 
Ed. 2d 772 (1997). The dispute before us is in part a product of this 
political and moral debate, but its resolution requires an inquiry 
familiar to the courts: interpreting a federal statute to determine 
whether Executive action is authorized by, or otherwise consistent with, 
the enactment.

In 1994, Oregon became the first State to legalize assisted suicide when 
voters approved a ballot measure [*13] enacting the Oregon Death With 
Dignity Act (ODWDA). Ore. Rev. Stat. § 127.800 et seq. (2003). ODWDA, 
which survived a 1997 ballot measure seeking its repeal, exempts from 
civil or criminal liability state-licensed physicians who, in compliance 
with the specific safeguards in ODWDA, dispense or prescribe a lethal dose 
of drugs upon the request of a terminally ill patient.

The drugs Oregon physicians prescribe under ODWDA are regulated under a 
federal statute, the Controlled Substances Act (CSA or Act). 84 Stat. 
1242, as amended, 21 U.S.C. § 801 et seq. The CSA allows these particular 
drugs to be available only by a written prescription from a registered 
physician. In the ordinary course the same drugs are prescribed in smaller 
doses for pain alleviation.

A November 9, 2001 Interpretive Rule issued by the Attorney General 
addresses the implementation and enforcement of the CSA with respect to 
ODWDA. It determines that using controlled substances to assist suicide is 
not a legitimate medical practice and that dispensing or prescribing them 
for this purpose is unlawful under the CSA. The Interpretive Rule's 
validity under the CSA is the issue before us.  [*14]

I

A

We turn first to the text and structure of the CSA. Enacted in 1970 with 
the main objectives of combating drug abuse and controlling the legitimate 
and illegitimate traffic in controlled substances, the CSA creates a 
comprehensive, closed regulatory regime criminalizing the unauthorized 
manufacture, distribution, dispensing, and possession of substances 
classified in any of the Act's five schedules. Gonzales v. Raich, 545 U.S. 
____, ___, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005) (slip op., at 9-10); 21 
U.S.C. § 841 (2000 ed. and Supp. II); 21 U.S.C. § 844. The Act places 
substances in one of five schedules based on their potential for abuse or 
dependence, their accepted medical use, and their accepted safety for use 
under medical supervision. Schedule I contains the most severe 
restrictions on access and use, and Schedule V the least. Raich, supra, at 
___ 125 S. Ct. 2195, 162 L. Ed. 2d 1 (slip op., at 11); 21 U.S.C. § 812. 
Congress classified a host of substances when it enacted the CSA, but the 
statute permits the Attorney General to add, remove, or reschedule 
substances. He may do so, however, only after making particular findings, 
and on scientific and medical [*15] matters he is required to accept the 
findings of the Secretary of Health and Human Services (Secretary). These 
proceedings must be on the record after an opportunity for comment. See 21 
U.S.C. A. § 811 (main ed. and Supp. 2005).

The present dispute involves controlled substances listed in Schedule II, 
substances generally available only pursuant to a written, nonrefillable 
prescription by a physician. 21 U.S.C. § 829(a). A 1971 regulation 
promulgated by the Attorney General requires that every prescription for a 
controlled substance "be issued for a legitimate medical purpose by an 
individual practitioner acting in the usual course of his professional 
practice." 21 CFR § 1306.04(a) (2005).

To prevent diversion of controlled substances with medical uses, the CSA 
regulates the activity of physicians. To issue lawful prescriptions of 
Schedule II drugs, physicians must "obtain from the Attorney General a 
registration issued in accordance with the rules and regulations 
promulgated by him." 21 U.S.C. § 822(a)(2). The Attorney General may deny, 
suspend, or revoke this registration if, as relevant here, the physician's 
[*16]  registration would be "inconsistent with the public interest." § 
824(a)(4); § 822(a)(2). When deciding whether a practitioner's 
registration is in the public interest, the Attorney General "shall" 
consider:

"(1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.

"(2) The applicant's experience in dispensing, or conducting research with 
respect to controlled substances.

"(3) The applicant's conviction record under Federal or State laws 
relating to the manufacture, distribution, or dispensing of controlled 
substances.

"(4) Compliance with applicable State, Federal, or local laws relating to 
controlled substances.

"(5) Such other conduct which may threaten the public health and safety." 
§ 823(f).

The CSA explicitly contemplates a role for the States in regulating 
controlled substances, as evidenced by its pre-emption provision.

"No provision of this subchapter shall be construed as indicating an 
intent on the part of the Congress to occupy the field in which that 
provision operates . . . to the exclusion of any State law on the same 
subject matter which would otherwise be within the authority of the State, 
unless there is a [*17]  positive conflict between that provision . . . 
and that State law so that the two cannot consistently stand together." § 
903.

B

Oregon voters enacted ODWDA in 1994. For Oregon residents to be eligible 
to request a prescription under ODWDA, they must receive a diagnosis from 
their attending physician that they have an incurable and irreversible 
disease that, within reasonable medical judgment, will cause death within 
six months. Ore. Rev. Stat. §§ 127.815, 127.800(12) (2003). Attending 
physicians must also determine whether a patient has made a voluntary 
request, ensure a patient's choice is informed, and refer patients to 
counseling if they might be suffering from a psychological disorder or 
depression causing impaired judgment. §§ 127.815, 127.825. A second 
"consulting" physician must examine the patient and the medical record and 
confirm the attending physician's conclusions. § 127.800(8). Oregon 
physicians may dispense or issue a prescription for the requested drug, 
but may not administer it. §§ 127.815(1)(L), 127.880.

The reviewing physicians must keep detailed medical records of the process 
leading to the final prescription, § 127.855, records that Oregon's 
Department of Human [*18]  Services reviews, § 127.865. Physicians who 
dispense medication pursuant to ODWDA must also be registered with both 
the State's Board of Medical Examiners and the federal Drug Enforcement 
Administration (DEA). § 127.815(1)(L). In 2004, 37 patients ended their 
lives by ingesting a lethal dose of medication prescribed under ODWDA. 
Oregon Dept. of Human Servs., Seventh Annual Report on Oregon's Death with 
Dignity Act 20 (Mar. 10, 2005).

C

In 1997, Members of Congress concerned about ODWDA invited the DEA to 
prosecute or revoke the CSA registration of Oregon physicians who assist 
suicide. They contended that hastening a patient's death is not legitimate 
medical practice, so prescribing controlled substances for that purpose 
violates the CSA. Letter from Sen. Orrin Hatch and Rep. Henry Hyde to 
Thomas A. Constantine (July 25, 1997), reprinted in Hearings on S. 2151 
before the Senate Committee on the Judiciary, 105th Cong., 2d Sess., 2-3 
(1999) (hereinafter Hearings). The letter received an initial, favorable 
response from the director of the DEA, see Letter from Thomas A. 
Constantine to Sen. Orrin Hatch (Nov. 5, 1997), Hearings 4-5, but Attorney 
General Reno considered the matter and [*19]  concluded that the DEA could 
not take the proposed action because the CSA did not authorize it to 
"displace the states as the primary regulators of the medical profession, 
or to override a state's determination as to what constitutes legitimate 
medical practice," Letter from Attorney General Janet Reno to Sen. Orrin 
Hatch, on Oregon's Death with Dignity Act (June 5, 1998), Hearings 5-6. 
Legislation was then introduced to grant the explicit authority Attorney 
General Reno found lacking; but it failed to pass. See H. R. 4006, 105th 
Cong., 2d Sess. (1998); H. R. 2260, 106th Cong., 1st Sess. (1999).

In 2001, John Ashcroft was appointed Attorney General. Perhaps because Mr. 
Ashcroft had supported efforts to curtail assisted suicide while serving 
as a Senator, see, e.g., 143 Cong. Rec. 5589-5590 (1997) (remarks of Sen. 
Ashcroft), Oregon Attorney General Hardy Myers wrote him to request a 
meeting with Department of Justice officials should the Department decide 
to revisit the application of the CSA to assisted suicide. Letter of Feb. 
2, 2001, App. to Brief for Patient-Respondents in Opposition 55a. Attorney 
General Myers received a reply letter from one of Attorney General 
Ashcroft's [*20]  advisers writing on his behalf, which stated

"I am aware of no pending legislation in Congress that would prompt a 
review of the Department's interpretation of the CSA as it relates to 
physician-assisted suicide. Should such a review be commenced in the 
future, we would be happy to include your views in that review." Letter 
from Lori Sharpe (Apr. 17, 2001), id., at 58a.

On November 9, 2001, without consulting Oregon or apparently anyone 
outside his Department, the Attorney General issued an Interpretive Rule 
announcing his intent to restrict the use of controlled substances for 
physician-assisted suicide. Incorporating the legal analysis of a 
memorandum he had solicited from his Office of Legal Counsel, the Attorney 
General ruled

"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 Controlled Substances Act. 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]  21 U.S.C. 824(a)(4). The Attorney 
General's conclusion applies regardless of whether state law authorizes or 
permits such conduct by practitioners or others and regardless of the 
condition of the person whose suicide is assisted." 66 Fed. Reg. 56608 
(2001).

There is little dispute that the Interpretive Rule would substantially 
disrupt the ODWDA regime. Respondents contend, and petitioners do not 
dispute, that every prescription filled under ODWDA has specified drugs 
classified under Schedule II. A physician cannot prescribe the substances 
without DEA registration, and revocation or suspension of the registration 
would be a severe restriction on medical practice. Dispensing controlled 
substances without a valid prescription, furthermore, is a federal crime. 
See, e.g., 21 U.S.C. § 841(a)(1) (2000 ed., Supp. II); United States v. 
Moore, 423 U.S. 122, 96 S. Ct. 335, 46 L. Ed. 2d 333 (1975).

In response the State of Oregon, joined by a physician, a pharmacist, and 
some terminally ill patients, all from Oregon, challenged the Interpretive 
Rule in federal court. The United States District Court for the District 
of Oregon entered a permanent [*22]  injunction against the Interpretive 
Rule's enforcement.

A divided panel of the Court of Appeals for the Ninth Circuit granted the 
petitions for review and held the Interpretive Rule invalid. Oregon v. 
Ashcroft, 368 F.3d 1118 (2004). It reasoned that, by making a medical 
procedure authorized under Oregon law a federal offense, the Interpretive 
Rule altered the "' "usual constitutional balance between the States and 
the Federal Government"' " without the requisite clear statement that the 
CSA authorized such action. Id., at 1124-1125 (quoting Gregory v. 
Ashcroft, 501 U.S. 452, 460, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991) (in 
turn quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 
S. Ct. 3142, 87 L. Ed. 2d 171 (1985))). The Court of Appeals held in the 
alternative that the Interpretive Rule could not be squared with the plain 
language of the CSA, which targets only conventional drug abuse and 
excludes the Attorney General from decisions on medical policy. 368 F.3d 
at 1125-1129.

We granted the Government's petition for certiorari. 543 U.S. 1145, 125 S. 
Ct. 1299; 161 L. Ed. 2d 104 (2005).

II

Executive actors often must interpret the enactments Congress has charged 
[*23]  them with enforcing and implementing. The parties before us are in 
sharp disagreement both as to the degree of deference we must accord the 
Interpretive Rule's substantive conclusions and whether the Rule is 
authorized by the statutory text at all. Although balancing the necessary 
respect for an agency's knowledge, expertise, and constitutional office 
with the courts' role as interpreter of laws can be a delicate matter, 
familiar principles guide us. An administrative rule may receive 
substantial deference if it interprets the issuing agency's own ambiguous 
regulation. Auer v. Robbins, 519 U.S. 452, 461-463, 117 S. Ct. 905, 137 L. 
Ed. 2d 79 (1997). An interpretation of an ambiguous statute may also 
receive substantial deference. Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 
842-845, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Deference in accordance 
with Chevron, however, is warranted only "when it appears that Congress 
delegated authority to the agency generally to make rules carrying the 
force of law, and that the agency interpretation claiming deference was 
promulgated in the exercise of that authority." United States v. Mead 
Corp., 533 U.S. 218, 226-227, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001). 
[*24]  Otherwise, the interpretation is "entitled to respect" only to the 
extent it has the "power to persuade." Skidmore v. Swift & Co., 323 U.S. 
134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944).

A

The Government first argues that the Interpretive Rule is an elaboration 
of one of the Attorney General's own regulations, 21 CFR § 1306.04 (2005), 
which requires all prescriptions be issued "for a legitimate medical 
purpose by an individual practitioner acting in the usual course of his 
professional practice." As such, the Government says, the Interpretive 
Rule is entitled to considerable deference in accordance with Auer.

In our view Auer and the standard of deference it accords to an agency are 
inapplicable here. Auer involved a disputed interpretation of the Fair 
Labor Standards Act of 1938 as applied to a class of law enforcement 
officers. Under regulations promulgated by the Secretary of Labor, an 
exemption from overtime pay depended, in part, on whether the employees 
met the "salary basis" test. 519 U.S., at 454-455, 117 S. Ct. 905, 137 
L.Ed. 2d 79. In this Court the Secretary of Labor filed an amicus brief 
explaining why, in his view, the regulations gave exempt status to the 
officers. Id., at 461, 117 S. Ct. 905, 137 L.Ed.2d 79 [*25]  We gave 
weight to that interpretation, holding that because the applicable test 
was "a creature of the Secretary's own regulations, his interpretation of 
it is, under our jurisprudence, controlling unless plainly erroneous or 
inconsistent with the regulation. " Ibid. (internal quotation marks 
omitted).

In Auer, the underlying regulations gave specificity to a statutory scheme 
the Secretary was charged with enforcing and reflected the considerable 
experience and expertise the Department of Labor had acquired over time 
with respect to the complexities of the Fair Labor Standards Act. Here, on 
the other hand, the underlying regulation does little more than restate 
the terms of the statute itself. The language the Interpretive Rule 
addresses comes from Congress, not the Attorney General, and the 
near-equivalence of the statute and regulation belies the Government's 
argument for Auer deference.

The Government does not suggest that its interpretation turns on any 
difference between the statutory and regulatory language. The CSA allows 
prescription of drugs only if they have a "currently accepted medical 
use," 21 U.S.C. § 812(b); requires a "medical purpose"  [*26]  for 
dispensing the least controlled substances of those on the schedules, § 
829(c); and, in its reporting provision, defines a "valid prescription" as 
one "issued for a legitimate medical purpose," § 830(b)(3)(A)(ii). 
Similarly, physicians are considered to be acting as practitioners under 
the statute if they dispense controlled substances "in the course of 
professional practice." § 802(21). The regulation uses the terms 
"legitimate medical purpose" and "the course of professional practice," 
ibid., but this just repeats two statutory phrases and attempts to 
summarize the others. It gives little or no instruction on a central issue 
in this case: Who decides whether a particular activity is in "the course 
of professional practice" or done for a "legitimate medical purpose"? 
Since the regulation gives no indication how to decide this issue, the 
Attorney General's effort to decide it now cannot be considered an 
interpretation of the regulation. Simply put, 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. An agency does 
not acquire special authority to interpret its own words [*27]  when, 
instead of using its expertise and experience to formulate a regulation, 
it has elected merely to paraphrase the statutory language.

Furthermore, as explained below, if there is statutory authority to issue 
the Interpretive Rule it comes from the 1984 amendments to the CSA that 
gave the Attorney General authority to register and deregister physicians 
based on the public interest. The regulation was enacted before those 
amendments, so the Interpretive Rule cannot be justified as indicative of 
some intent the Attorney General had in 1971. That the current 
interpretation runs counter to the "intent at the time of the regulation's 
promulgation," is an additional reason why Auer deference is unwarranted. 
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381, 129 
L. Ed. 2d 405 (1994) (internal quotation marks omitted). Deference under 
Auer being inappropriate, we turn to the question whether the Interpretive 
Rule, on its own terms, is a permissible interpretation of the CSA.

B

Just as the Interpretive Rule receives no deference under Auer, neither 
does it receive deference under Chevron. If a statute is ambiguous, 
judicial review of administrative rulemaking often [*28]  demands Chevron 
deference; and the rule is judged accordingly. All would agree, we should 
think, that the statutory phrase "legitimate medical purpose" is a 
generality, susceptible to more precise definition and open to varying 
constructions, and thus ambiguous in the relevant sense. Chevron 
deference, however, is not accorded merely because the statute is 
ambiguous and an administrative official is involved. To begin with, the 
rule must be promulgated pursuant to authority Congress has delegated to 
the official. Mead, 533 U.S., at 226-227, 121 S. Ct. 2164, 150 L.Ed. 2d 
292.

The Attorney General has rulemaking power to fulfill his duties under the 
CSA. The specific respects in which he is authorized to make rules, 
however, instruct us that he is not authorized to make a rule declaring 
illegitimate a medical standard for care and treatment of patients that is 
specifically authorized under state law.

The starting point for this inquiry is, of course, the language of the 
delegation provision itself. In many cases authority is clear because the 
statute gives an agency broad power to enforce all provisions of the 
statute. See, e.g., Nat'l Cable & Telecomms. Ass'n. v. Brand X Internet 
Servs., 545 U.S. ___, ___ 125 S. Ct. 2688, 2699, 162 L. Ed. 2d 820, 837 
(2005) [*29]  (explaining that a Federal Communications Commission 
regulation received Chevron deference because "Congress has delegated to 
the Commission the authority to . . . 'prescribe such rules and 
regulations as may be necessary in the public interest to carry out the 
provisions' of the Act" (quoting 47 U.S.C. § 201(b))); Household Credit 
Services, Inc. v. Pfennig, 541 U.S. 232, 238, 124 S. Ct. 1741, 158 L. Ed. 
2d 450 (2004) (giving Chevron deference to a Federal Reserve Board 
regulation where "Congress has expressly delegated to the Board the 
authority to prescribe regulations . . . as, in the judgment of the Board, 
'are necessary or proper to effectuate the purposes of '" the statute 
(quoting 15 U.S.C. § 1604(a))). The CSA does not grant the Attorney 
General this broad authority to promulgate rules.

The CSA gives the Attorney General limited powers, to be exercised in 
specific ways. His rulemaking authority under the CSA is described in two 
provisions: (1) "The Attorney General is authorized to promulgate rules 
and regulations and to charge reasonable fees relating to the registration 
and control [*30]  of the manufacture, distribution, and dispensing of 
controlled substances and to listed chemicals," 21 U.S.C. A. § 821 (Supp. 
2005); and (2) "The Attorney General may promulgate and enforce any rules, 
regulations, and procedures which he may deem necessary and appropriate 
for the efficient execution of his functions under this subchapter," 21 
U.S.C. § 871(b). As is evident from these sections, Congress did not 
delegate to the Attorney General authority to carry out or effect all 
provisions of the CSA. Rather, he can promulgate rules relating only to 
"registration" and "control," and "for the efficient execution of his 
functions" under the statute.

Turning first to the Attorney General's authority to make regulations for 
the "control" of drugs, this delegation cannot sustain the Interpretive 
Rule's attempt to define standards of medical practice. Control is a term 
of art in the CSA. "As used in this subchapter," § 802--the subchapter 
that includes § 821--

"The term 'control' means to add a drug or other substance, or immediate 
precursor, to a schedule under part B of this subchapter, whether by 
transfer from another schedule or otherwise.  [*31]  " § 802(5).

To exercise his scheduling power, the Attorney General must follow a 
detailed set of procedures, including requesting a scientific and medical 
evaluation from the Secretary. See 21 U.S.C. A. §§ 811, 812 (main ed. and 
Supp. 2005). The statute is also specific as to the manner in which the 
Attorney General must exercise this authority: "Rules of the Attorney 
General under this subsection [regarding scheduling] shall be made on the 
record after opportunity for a hearing pursuant to the rulemaking 
procedures prescribed by [the Administrative Procedure Act, 5 U.S.C. § 
553]." 21 U.S.C. § 811(a). The Interpretive Rule now under consideration 
does not concern the scheduling of substances and was not issued after the 
required procedures for rules regarding scheduling, so it cannot fall 
under the Attorney General's "control" authority.

Even if "control" in § 821 were understood to signify something other than 
its statutory definition, it would not support the Interpretive Rule. The 
statutory references to "control" outside the scheduling context make 
clear that the Attorney General can establish controls "against [*32] 
diversion," e.g., § 823(a)(1), but do not give him authority to define 
diversion based on his view of legitimate medical practice. As explained 
below, the CSA's express limitations on the Attorney General's authority, 
and other indications from the statutory scheme, belie any notion that the 
Attorney General has been granted this implicit authority. Indeed, if 
"control" were given the expansive meaning required to sustain the 
Interpretive Rule, it would transform the carefully described limits on 
the Attorney General's authority over registration and scheduling into 
mere suggestions.

We turn, next, to the registration provisions of the CSA. Before 1984, the 
Attorney General was required to register any physician who was authorized 
by his State. The Attorney General could only deregister a physician who 
falsified his application, was convicted of a felony relating to 
controlled substances, or had his state license or registration revoked. 
See 84 Stat. 1255. The CSA was amended in 1984 to allow the Attorney 
General to deny registration to an applicant "if he determines that the 
issuance of such registration would be inconsistent with the public 
interest." 21 U.S.C. § 823(f) [*33]  . Registration may also be revoked or 
suspended by the Attorney General on the same grounds. § 824(a)(4). In 
determining consistency with the public interest, the Attorney General 
must, as discussed above, consider five factors, including: the State's 
recommendation; compliance with state, federal, and local laws regarding 
controlled substances; and public health and safety. § 823(f).

The Interpretive Rule cannot be justified under this part of the statute. 
It does not undertake the five-factor analysis and concerns much more than 
registration. Nor does the Interpretive Rule on its face purport to be an 
application of the registration provision in § 823(f). It is, instead, an 
interpretation of the substantive federal law requirements (under 21 CFR § 
1306.04 (2005)) for a valid prescription. It begins by announcing that 
assisting suicide is not a "legitimate medical purpose" under § 1306.04, 
and that dispensing controlled substances to assist a suicide violates the 
CSA. 66 Fed. Reg. 56608 (2001). Violation is a criminal offense, and often 
a felony, under 21 U.S.C. § 841 (2000 ed. and Supp. II). The Interpretive 
Rule thus purports to declare [*34]  that using controlled substances for 
physician-assisted suicide is a crime, an authority that goes well beyond 
the Attorney General's statutory power to register or deregister.

The Attorney General's deregistration power, of course, may carry 
implications for criminal enforcement because if a physician dispenses a 
controlled substance after he is deregistered, he violates § 841. The 
Interpretive Rule works in the opposite direction, however: it declares 
certain conduct criminal, placing in jeopardy the registration of any 
physician who engages in that conduct. To the extent the Interpretive Rule 
concerns registration, it simply states the obvious because one of the 
five factors the Attorney General must consider in deciding the "public 
interest" is "compliance with applicable State, Federal, or local laws 
relating to controlled substances." 21 U.S.C. § 823(f)(4). The problem 
with the design of the Interpretive Rule is that it cannot, and does not, 
explain why the Attorney General has the authority to decide what 
constitutes an underlying violation of the CSA in the first place. The 
explanation the Government seems to advance is that the Attorney General's 
authority [*35]  to decide whether a physician's actions are inconsistent 
with the "public interest" provides the basis for the Interpretive Rule.

By this logic, however, the Attorney General claims extraordinary 
authority. If the Attorney General's argument were correct, his power to 
deregister necessarily would include the greater power to criminalize even 
the actions of registered physicians, whenever they engage in conduct he 
deems illegitimate. This power to criminalize -- unlike his power over 
registration, which must be exercised only after considering five express 
statutory factors -- would be unrestrained. It would be anomalous for 
Congress to have so painstakingly described the Attorney General's limited 
authority to deregister a single physician or schedule a single drug, but 
to have given him, just by implication, authority to declare an entire 
class of activity outside "the course of professional practice," and 
therefore a criminal violation of the CSA. See Federal Maritime Comm'n v. 
Seatrain Lines, Inc., 411 U.S. 726, 744, 93 S. Ct. 1773, 36 L. Ed. 2d 620 
(1973) ("In light of these specific grants of . . . authority, we are 
unwilling to construe the ambiguous provisions . . . to serve this purpose 
[*36]  [of creating further authority] -- a purpose for which it obviously 
was not intended").

Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139, 144 L. 
Ed. 2d 450 (1999), is instructive. The statute at issue was the Americans 
with Disabilities Act of 1990 (ADA), which, like the CSA, divides 
interpretive authority among various Executive actors. The Court relied on 
"the terms and structure of the ADA" to decide that neither the Equal 
Employment Opportunity Commission, nor any other agency had authority to 
define "disability" in the ADA. Id., at 479, 119 S. Ct. 2139, 144 L. Ed. 
2d 450. Specifically, the delegating provision stated that the EEOC "shall 
issue regulations . . . to carry out this subchapter," 42 U.S.C. § 12116, 
and the section of the statute defining "disability" was in a different 
subchapter. The Court did not accept the idea that because "the employment 
subchapter, i.e., 'this subchapter,' includes other provisions that use 
the defined terms, . . . the EEOC might elaborate, through regulations, on 
the meaning of 'disability' . . . if elaboration is needed in order to 
'carry out' the substantive provisions of 'this subchapter.'" 527 U.S., at 
514, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (BREYER,  [*37]  J., dissenting). 
See also Adams Fruit Co. v. Barrett, 494 U.S. 638, 649-650, 110 S. Ct. 
1384, 108 L. Ed. 2d 585 (1990) (holding that a delegation of authority to 
promulgate motor vehicle safety "standards" did not include the authority 
to decide the pre-emptive scope of the federal statute because "no such 
delegation regarding [the statute's] enforcement provisions is evident in 
the statute").

The same principle controls here. It is not enough that the terms "public 
interest," "public health and safety," and "Federal law" are used in the 
part of the statute over which the Attorney General has authority. The 
statutory terms "public interest" and "public health" do not call on the 
Attorney General, or any other Executive official, to make an independent 
assessment of the meaning of federal law. The Attorney General did not 
base the Interpretive Rule on an application of the five-factor test 
generally, or the "public health and safety" factor specifically. Even if 
he had, it is doubtful the Attorney General could cite the "public 
interest" or "public health" to deregister a physician simply because he 
deemed a controversial practice permitted by state law to have an 
illegitimate medical purpose.  [*38]

As for the federal law factor, though it does require the Attorney General 
to decide "compliance" with the law, it does not suggest that he may 
decide what the law says. Were it otherwise, the Attorney General could 
authoritatively interpret "State" and "local laws," which are also 
included in 21 U.S.C. § 823(f), despite the obvious constitutional 
problems in his doing so. Just as he must evaluate compliance with federal 
law in deciding about registration, the Attorney General must as surely 
evaluate compliance with federal law in deciding whether to prosecute; but 
this does not entitle him to Chevron deference. See Crandon v. United 
States, 494 U.S. 152, 177, 110 S. Ct. 997, 108 L. Ed. 2d 132 (1990) 
(SCALIA, J., concurring in judgment) ("The Justice Department, of course, 
has a very specific responsibility to determine for itself what this 
statute means, in order to decide when to prosecute; but we have never 
thought that the interpretation of those charged with prosecuting criminal 
statutes is entitled to deference").

The limits on the Attorney General's authority to define medical standards 
for the care and treatment of patients bear also on the proper 
interpretation [*39]  of § 871(b). This section allows the Attorney 
General to best determine how to execute "his functions." It is quite a 
different matter, however, to say that the Attorney General can define the 
substantive standards of medical practice as part of his authority. To 
find a delegation of this extent in § 871 would put that part of the 
statute in considerable tension with the narrowly defined delegation 
concerning control and registration. It would go, moreover, against the 
plain language of the text to treat a delegation for the "execution" of 
his functions as a further delegation to define other functions well 
beyond the statute's specific grants of authority. When Congress chooses 
to delegate a power of this extent, it does so not by referring back to 
the administrator's functions but by giving authority over the provisions 
of the statute he is to interpret. See, e.g., National Cable & 
Telecommunications Assn., 545 U.S. ___, 125 S. Ct. 2688, 162 L. Ed. 2d 
820; Household Credit Servs. v. Pfennig, 541 U.S. 232, 124 S. Ct. 1741, 
158 L. Ed. 2d 450.

The authority desired by the Government is inconsistent with the design of 
the statute in other fundamental respects. The Attorney General does not 
have the sole delegated authority under the CSA. He [*40]  must instead 
share it with, and in some respects defer to, the Secretary, whose 
functions are likewise delineated and confined by the statute. The CSA 
allocates decisionmaking powers among statutory actors so that medical 
judgments, if they are to be decided at the federal level and for the 
limited objects of the statute, are placed in the hands of the Secretary. 
In the scheduling context, for example, the Secretary's recommendations on 
scientific and medical matters bind the Attorney General. The Attorney 
General cannot control a substance if the Secretary disagrees. 21 U.S.C. § 
811(b). See H. R. Rep. No. 91-1444, pt. 1, p. 33 (1970) (the section "is 
not intended to authorize the Attorney General to undertake or support 
medical and scientific research [for the purpose of scheduling], which is 
within the competence of the Department of Health, Education, and 
Welfare").

In a similar vein the 1970 Act's regulation of medical practice with 
respect to drug rehabilitation gives the Attorney General a limited role; 
for it is the Secretary who, after consultation with the Attorney General 
and national medical groups, "determines the appropriate methods of 
professional [*41]  practice in the medical treatment of . . . narcotic 
addiction." 42 U.S.C. § 290bb-2a; see 21 U.S.C. § 823(g) (2000 ed. and 
Supp. II) (stating that the Attorney General shall register practitioners 
who dispense drugs for narcotics treatment when the Secretary has 
determined the applicant is qualified to treat addicts and the Attorney 
General has concluded the applicant will comply with record keeping and 
security regulations); Moore, 423 U.S., at 144, 96 S. Ct. 335, 46 L. Ed. 
2d 333 (noting that in enacting the addiction-treatment provisions, 
Congress sought to change the fact "that 'criminal prosecutions' in the 
past had turned on the opinions of federal prosecutors"); H. R. Rep. No. 
93-884, p. 6 (1974) ("This section preserves the distinctions found in the 
[CSA] between the functions of the Attorney General and the Secretary . . 
. . All decisions of a medical nature are to be made by the Secretary . . 
. . Law enforcement decisions respecting the security of stocks of 
narcotics drugs and the maintenance of records on such drugs are to be 
made by the Attorney General").

Post enactment congressional commentary on the CSA's regulation of medical 
practice [*42]  is also at odds with the Attorney General's claimed 
authority to determine appropriate medical standards. In 1978, in 
preparation for ratification of the Convention on Psychotropic Substances, 
Feb. 21, 1971, [1979-1980] 32 U.S. T. 543, T. I. A. S. No. 9725, Congress 
decided it would implement the United States' compliance through "the 
framework of the procedures and criteria for classification of substances 
provided in the" CSA. 21 U.S.C. § 801a (3). It did so to ensure that 
"nothing in the Convention will interfere with ethical medical practice in 
this country as determined by [the Secretary] on the basis of a consensus 
of the views of the American medical and scientific community." Ibid.

The structure of the CSA, then, conveys unwillingness to cede medical 
judgments to an Executive official who lacks medical expertise. In 
interpreting statutes that divide authority, the Court has recognized: 
"Because historical familiarity and policymaking expertise account in the 
first instance for the presumption that Congress delegates interpretive 
lawmaking power to the agency rather than to the reviewing court, we 
presume here that Congress [*43]  intended to invest interpretive power in 
the administrative actor in the best position to develop these 
attributes." Martin v. OSHRC, 499 U.S. 144, 153, 111 S. Ct. 1171, 113 L. 
Ed. 2d 117 (1991) (citations omitted). This presumption works against a 
conclusion that the Attorney General has authority to make 
quintessentially medical judgments.

The Government contends the Attorney General's decision here is a legal, 
not a medical, one. This generality, however, does not suffice. The 
Attorney General's Interpretive Rule, and the Office of Legal Counsel memo 
it incorporates, place extensive reliance on medical judgments and the 
views of the medical community in concluding that assisted suicide is not 
a "legitimate medical purpose." See 66 Fed. Reg. 56608 (noting the 
"medical" distinctions between assisting suicide and giving sufficient 
medication to alleviate pain); Memorandum from Office of Legal Counsel to 
Attorney General (June 27, 2001), App. to Pet. for Cert. 121a-122a, and n. 
17 (discussing the "Federal medical policy" against physician-assisted 
suicide), id., at 124a-130a (examining views of the medical community). 
This confirms that the [*44]  authority claimed by the Attorney General is 
both beyond his expertise and incongruous with the statutory purposes and 
design.

The idea that Congress gave the Attorney General such broad and unusual 
authority through an implicit delegation in the CSA's registration 
provision is not sustainable. "Congress, we have held, does not alter the 
fundamental details of a regulatory scheme in vague terms or ancillary 
provisions -- it does not, one might say, hide elephants in mouseholes." 
Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468, 121 S. Ct. 
903, 149 L. Ed. 2d 1 (2001); see FDA v. Brown & Williamson Tobacco Corp., 
529 U.S. 120, 160, 120 S. Ct. 1291, 146 L. Ed. 2d 121 (2000) ("We are 
confident that Congress could not have intended to delegate a decision of 
such economic and political significance to an agency in so cryptic a 
fashion").

The importance of the issue of physician-assisted suicide, which has been 
the subject of an "earnest and profound debate" across the country, 
Glucksberg, 521 U.S., at 735, 117 S. Ct. 2258, 117 S. Ct. 2302, makes the 
oblique form of the claimed delegation all the more suspect. Under the 
Government's theory, moreover, the medical judgments the Attorney General 
could make are not limited [*45]  to physician-assisted suicide. Were this 
argument accepted, he could decide whether any particular drug may be used 
for any particular purpose, or indeed whether a physician who administers 
any controversial treatment could be deregistered. This would occur, under 
the Government's view, despite the statute's express limitation of the 
Attorney General's authority to registration and control, with attendant 
restrictions on each of those functions, and despite the statutory 
purposes to combat drug abuse and prevent illicit drug trafficking.

We need not decide whether Chevron deference would be warranted for an 
interpretation issued by the Attorney General concerning matters closer to 
his role under the CSA, namely preventing doctors from engaging in illicit 
drug trafficking. In light of the foregoing, however, the CSA does not 
give the Attorney General authority to issue the Interpretive Rule as a 
statement with the force of law.

If, in the course of exercising his authority, the Attorney General uses 
his analysis in the Interpretive Rule only for guidance in deciding when 
to prosecute or deregister, then the question remains whether his 
substantive interpretation is correct. Since [*46]  the Interpretive Rule 
was not promulgated pursuant to the Attorney General's authority, its 
interpretation of "legitimate medical purpose" does not receive Chevron 
deference. Instead, it receives deference only in accordance with 
Skidmore. "The weight of such a judgment in a particular case will depend 
upon the thoroughness evident in its consideration, the validity of its 
reasoning, its consistency with earlier and later pronouncements, and all 
those factors which give it power to persuade, if lacking power to 
control." 323 U.S., at 140, 65 S. Ct. 161, 89 L. Ed.2d 124; see also Mead, 
533 U.S., at 235, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (noting that an 
opinion receiving Skidmore deference may "claim the merit of its writer's 
thoroughness, logic, and expertness, its fit with prior interpretations, 
and any other sources of weight"). The deference here is tempered by the 
Attorney General's lack of expertise in this area and the apparent absence 
of any consultation with anyone outside the Department of Justice who 
might aid in a reasoned judgment. In any event, under Skidmore, we follow 
an agency's rule only to the extent it is persuasive, see Christensen v. 
Harris County, 529 U.S. 576, 587, 120 S. Ct. 1655, 146 L. Ed. 2d 621 
(2000); [*47]  and for the reasons given and for further reasons set out 
below, we do not find the Attorney General's opinion persuasive.

III

As we have noted before, the CSA "repealed most of the earlier antidrug 
laws in favor of a comprehensive regime to combat the international and 
interstate traffic in illicit drugs." Raich, 545 U.S., at ___ , 125 S. Ct. 
2195, 2203, 162 L. Ed. 2d 1, 16). In doing so, Congress sought to "conquer 
drug abuse and to control the legitimate and illegitimate traffic in 
controlled substances." Ibid. It comes as little surprise, then, that we 
have not considered the extent to which the CSA regulates medical practice 
beyond prohibiting a doctor from acting as a drug "'pusher'" instead of a 
physician. Moore, 423 U.S., at 143, 96 S. Ct. 335, 46 L. Ed. 2d 333. In 
Moore, we addressed a situation in which a doctor "sold drugs, not for 
legitimate purposes, but primarily for the profits to be derived 
therefrom." Id., at 135, 96 S. Ct. 335, 46 L. Ed. 2d 333 (quoting H. R. 
Rep. No. 91-1444, pt. 1, at 10; internal quotation marks omitted). There 
the defendant, who had engaged in large-scale overprescribing of 
methadone, "conceded in his brief that he did not observe generally 
accepted medical practices." 423 U.S., at 126, 96 S. Ct. 335, 46 L. Ed. 2d 
333 [*48]  And in United States v. Oakland Cannabis Buyers' Cooperative, 
532 U.S. 483, 121 S. Ct. 1711, 149 L. Ed. 2d 722 (2001), Congress' express 
determination that marijuana had no accepted medical use foreclosed any 
argument about statutory coverage of drugs available by a doctor's 
prescription.

In deciding whether the CSA can be read as prohibiting physician-assisted 
suicide, we look to the statute's text and design. The statute and our 
case law amply support the conclusion that Congress regulates medical 
practice insofar as it bars doctors from using their prescription-writing 
powers as a means to engage in illicit drug dealing and trafficking as 
conventionally understood. Beyond this, however, the statute manifests no 
intent to regulate the practice of medicine generally. The silence is 
understandable given the structure and limitations of federalism, which 
allow the States "'great latitude under their police powers to legislate 
as to the protection of the lives, limbs, health, comfort, and quiet of 
all persons.'" Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S. Ct. 
2240, 135 L. Ed. 2d 700 (1996) (quoting Metropolitan Life Ins. Co. v. 
Massachusetts, 471 U.S. 724, 756, 105 S. Ct. 2380, 85 L. Ed. 2d 728 
(1985)).

The structure [*49]  and operation of the CSA presume and rely upon a 
functioning medical profession regulated under the States' police powers. 
The Attorney General can register a physician to dispense controlled 
substances "if the applicant is authorized to dispense . . . controlled 
substances under the laws of the State in which he practices." 21 U.S.C. § 
823(f). When considering whether to revoke a physician's registration, the 
Attorney General looks not just to violations of federal drug laws; but he 
"shall" also consider "the recommendation of the appropriate state 
licensing board or professional disciplinary authority" and the 
registrant's compliance with state and local drug laws. Ibid. The very 
definition of a "practitioner" eligible to prescribe includes physicians 
"licensed, registered, or otherwise permitted, by the United States or the 
jurisdiction in which he practices" to dispense controlled substances. § 
802(21). Further cautioning against the conclusion that the CSA 
effectively displaces the States' general regulation of medical practice 
is the Act's pre-emption provision, which indicates that, absent a 
positive conflict, none of the Act's provisions should be [*50] 
"construed as indicating an intent on the part of the Congress to occupy 
the field in which that provision operates . . . to the exclusion of any 
State law on the same subject matter which would otherwise be within the 
authority of the State." § 903.

Oregon's regime is an example of the state regulation of medical practice 
that the CSA presupposes. Rather than simply decriminalizing assisted 
suicide, ODWDA limits its exercise to the attending physicians of 
terminally ill patients, physicians who must be licensed by Oregon's Board 
of Medical Examiners. Ore. Rev. Stat. §§ 127.815, 127.800(10) (2003). The 
statute gives attending physicians a central role, requiring them to 
provide prognoses and prescriptions, give information about palliative 
alternatives and counseling, and ensure patients are competent and acting 
voluntarily. § 127.815. Any eligible patient must also get a second 
opinion from another registered physician, § 127.820, and the statute's 
safeguards require physicians to keep and submit to inspection detailed 
records of their actions, §§ 127.855, 127.865.

Even though regulation of health and safety is "primarily, and 
historically, a matter of local concern," Hillsborough County v. Automated 
Medical Laboratories, Inc., 471 U.S. 707, 719, 105 S. Ct. 2371, 85 L. Ed. 
2d 714 (1985), [*51]  there is no question that the Federal Government can 
set uniform national standards in these areas. See Raich, supra, at ___, 
125 S. Ct. 2195, 162 L. Ed. 2d 1 (slip op., at 6). In connection to the 
CSA, however, we find only one area in which Congress set general, uniform 
standards of medical practice. Title I of the Comprehensive Drug Abuse 
Prevention and Control Act of 1970, of which the CSA was Title II, 
provides that

"[The Secretary], after consultation with the Attorney General and with 
national organizations representative of persons with knowledge and 
experience in the treatment of narcotic addicts, shall determine the 
appropriate methods of professional practice in the medical treatment of 
the narcotic addiction of various classes of narcotic addicts, and shall 
report thereon from time to time to the Congress." § 4, 84 Stat. 1241, 
codified at 42 U.S.C. § 290bb-2a.

This provision strengthens the understanding of the CSA as a statute 
combating recreational drug abuse, and also indicates that when Congress 
wants to regulate medical practice in the given scheme, it does so by 
explicit language in the statute.

In the face of the CSA's silence on the practice of medicine generally 
[*52]  and its recognition of state regulation of the medical profession 
it is difficult to defend the Attorney General's declaration that the 
statute impliedly criminalizes physician-assisted suicide. This difficulty 
is compounded by the CSA's consistent delegation of medical judgments to 
the Secretary and its otherwise careful allocation of powers for enforcing 
the limited objects of the CSA. See Part II-B, supra. The Government's 
attempt to meet this challenge rests, for the most part, on the CSA's 
requirement that every Schedule II drug be dispensed pursuant to a 
"written prescription of a practitioner." 21 U.S.C. § 829(a). A 
prescription, the Government argues, necessarily implies that the 
substance is being made available to a patient for a legitimate medical 
purpose. The statute, in this view, requires an anterior judgment about 
the term "medical" or "medicine." The Government contends ordinary usage 
of these words ineluctably refers to a healing or curative art, which by 
these terms cannot embrace the intentional hastening of a patient's death. 
It also points to the teachings of Hippocrates, the positions of prominent 
medical organizations, the Federal Government,  [*53]  and the judgment of 
the 49 States that have not legalized physician-assisted suicide as 
further support for the proposition that the practice is not legitimate 
medicine. See Brief for Petitioners 22-24; Memorandum from Office of Legal 
Counsel to Attorney General, App. to Pet. for Cert. 124a-130a.

On its own, this understanding of medicine's boundaries is at least 
reasonable. The primary problem with the Government's argument, however, 
is its assumption that the CSA impliedly authorizes an Executive officer 
to bar a use simply because it may be inconsistent with one reasonable 
understanding of medical practice. Viewed alone, the prescription 
requirement may support such an understanding, but statutes "should not be 
read as a series of unrelated and isolated provisions." Gustafson v. 
Alloyd Co., 513 U.S. 561, 570, 115 S. Ct. 1061, 131 L. Ed. 2d 1 (1995). 
The CSA's substantive provisions and their arrangement undermine this 
assertion of an expansive federal authority to regulate medicine.

The statutory criteria for deciding what substances are controlled, 
determinations which are central to the Act, consistently connect the 
undefined term "drug abuse" with addiction or abnormal effects on the 
nervous [*54]  system. When the Attorney General schedules drugs, he must 
consider a substance's psychic or physiological dependence liability. 21 
U.S.C. § 811(c)(7). To classify a substance in Schedules II through V, the 
Attorney General must find abuse of the drug leads to psychological or 
physical dependence. § 812(b). Indeed, the differentiation of Schedules II 
through V turns in large part on a substance's habit-forming potential: 
The more addictive a substance, the stricter the controls. Ibid. When 
Congress wanted to extend the CSA's regulation to substances not obviously 
habit forming or psychotropic, moreover, it relied not on Executive 
ingenuity, but rather on specific legislation. See § 1902(a) of the 
Anabolic Steroids Control Act of 1990, 104 Stat. 4851 (placing anabolic 
steroids in Schedule III).

The statutory scheme with which the CSA is intertwined further confirms a 
more limited understanding of the prescription requirement. When the 
Secretary considers FDA approval of a substance with "stimulant, 
depressant, or hallucinogenic effect," he must forward the information to 
the Attorney General for possible scheduling. Shedding light on Congress' 
understanding [*55]  of drug abuse, this requirement appears under the 
heading "Abuse potential." 21 U.S.C. § 811(f). Similarly, when Congress 
prepared to implement the Convention on Psychotropic Substances, it did so 
through the CSA. § 801a.

The Interpretive Rule rests on a reading of the prescription requirement 
that is persuasive only to the extent one scrutinizes the provision 
without the illumination of the rest of the statute. See Massachusetts v. 
Morash, 490 U.S. 107, 114-115, 109 S. Ct. 1668, 104 L. Ed. 2d 98 (1989). 
Viewed in its context, the prescription requirement is better understood 
as a provision that ensures patients use controlled substances under the 
supervision of a doctor so as to prevent addiction and recreational abuse. 
As a corollary, the provision also bars doctors from peddling to patients 
who crave the drugs for those prohibited uses. See Moore, 423 U.S., at 
135, 143, 96 S. Ct. 335, 46 L. Ed. 2d 333. To read prescriptions for 
assisted suicide as constituting "drug abuse" under the CSA is discordant 
with the phrase's consistent use throughout the statute, not to mention 
its ordinary meaning.

The Government's interpretation of the prescription requirement also fails 
under the objection [*56]  that the Attorney General is an unlikely 
recipient of such broad authority, given the Secretary's primacy in 
shaping medical policy under the CSA, and the statute's otherwise careful 
allocation of decisionmaking powers. Just as the conventions of expression 
indicate that Congress is unlikely to alter a statute's obvious scope and 
division of authority through muffled hints, the background principles of 
our federal system also belie the notion that Congress would use such an 
obscure grant of authority to regulate areas traditionally supervised by 
the States' police power. It is unnecessary even to consider the 
application of clear statement requirements, see, e.g., United States v. 
Bass, 404 U.S. 336, 349, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971); cf. BFP 
v. Resolution Trust Corporation, 511 U.S. 531, 544-546, 114 S. Ct. 1757, 
128 L. Ed. 2d 556 (1994), or presumptions against pre-emption, see, e.g., 
Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 387, 122 S. Ct. 2151, 
153 L. Ed. 2d 375 (2002), to reach this commonsense conclusion. For all 
these reasons, we conclude the CSA's prescription requirement does not 
authorize the Attorney General to bar dispensing controlled substances for 
assisted suicide in the face of a [*57]  state medical regime permitting 
such conduct.

IV

The Government, in the end, maintains that the prescription requirement 
delegates to a single Executive officer the power to effect a radical 
shift of authority from the States to the Federal Government to define 
general standards of medical practice in every locality. The text and 
structure of the CSA show that Congress did not have this far-reaching 
intent to alter the federal-state balance and the congressional role in 
maintaining it.

The judgment of the Court of Appeals is

Affirmed.

DISSENTBY: THOMAS

DISSENT: JUSTICE SCALIA, with whom CHIEF JUSTICE ROBERTS and JUSTICE 
THOMAS join, dissenting.

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 [*58]  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, 117 S. Ct. 905, 137 L. Ed. 2d 79 
(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. NRDA, 467 U.S. 837, 104 S. Ct. 
2778, 81 L. Ed. 2d 694 (1984), and they are valid under Chevron. See Part 
[*59]  III, infra. For these reasons, I respectfully dissent.

I

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 [*60]  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."

A

Because the Regulation was promulgated by the Attorney General, and 
because the Directive purported to interpret [*61]  the language of the 
Regulation, see 66 Fed. Reg. 56608, this 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, 117 S. Ct. 905, 
137 L. Ed. 2d 79 (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  [*62]  the statute." 519 
U.S., at 463, 117 S. Ct. 905, 137 L. Ed. 2d 79 (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 "paraphrases 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 "prescriptions," § 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, 96 S. Ct. 335, 46 L. Ed. 2d 333 
(1975) [*63]  ("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 "any 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:  [*64]  "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, 96 S. Ct. 335, 46 L. Ed. 2d 333. 
n1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 To be sure, this acknowledgment did not go far enough, because it 
overlooked the significance of the word "legitimate," which is most 
naturally understood to create an objective, federal standard for 
appropriate medical uses. See Mississippi Band of Choctaw Indians v. 
Holyfield, 490 U.S. 30, 43, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989) ("We 
start . . . with the general assumption that in the absence of a plain 
indication to the contrary, . . . Congress when it enacts a statute is not 
making the application of the federal act dependent on state law" 
(internal quotation marks omitted)).


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*65]

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. n2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n2 The only place outside 21 U.S.C. § 801 in which the statute uses the 
phrase "legitimate medical purpose" is in defining the phrase "valid 
prescription" for purposes of the reporting requirements that apply to 
mail orders of regulated substances. See § 830(b)(3)(A)(ii). The 
Regulation did not "parrot" this statutory section, because the Regulation 
was adopted in 1971 and the statutory language was added in 2000. See 
Brief for Petitioners 17 (citing the Children's Health Act of 2000, § 
3652, 114 Stat. 1239, 21 U.S.C. § 830(b)(3)). But even if the statutory 
language had predated the Regulation, there would be no "parroting" of 
that phrase. In using the word "prescription" without definition in the 
much more critical § 829, Congress left the task of resolving any 
ambiguity in that word, used in that context, to the relevant Executive 
officer. That the officer did so by deeming relevant a technically 
inapplicable statutory definition contained elsewhere in the statute does 
not make him a parrot. He has given to the statutory text a meaning it did 
not explicitly -- and perhaps even not necessarily -- contain.


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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, 117 S. Ct. 905, 137 L. Ed. 2d 79 
(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, 39 S. Ct. 217, 63 L. Ed. 
497, 17 Ohio L. Rep. 88 (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, 39 S. Ct. 217, 63 L. Ed. 497. 
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 [*67]  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, 39 S. Ct. 217, 63 L. Ed. 497. 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.

B

Even if the Regulation merely parroted the statute, and the Directive 
therefore had to be treated as though it construed the statute directly, 
see ante, at 11, the Directive would still be entitled to deference under 
Chevron. The Court does not take issue with the Solicitor General's 
contention that no alleged procedural defect, such as the absence of 
notice-and-comment rulemaking before promulgation of the Directive, 
renders Chevron inapplicable here. See Reply Brief for Petitioners 4 
(citing Barnhart v. Walton, 535 U.S. 212, 219-222, 122 S. Ct. 1265, 152 L. 
Ed. 2d 330 (2002); [*68]  5 U.S.C. § 553(b)(3)(A) (exempting interpretive 
rules from notice-and-comment rulemaking)). Instead, the Court holds that 
the Attorney General lacks interpretive authority to issue the Directive 
at all, on the ground that the explicit delegation provision, 21 U.S.C. A. 
§ 821 (Supp. 2005), limits his rulemaking authority to "registration and 
control," which (according to the Court) are not implicated by the 
Directive's interpretation of the prescription requirement. See ante, at 
12-14.

Setting aside the implicit delegation inherent in Congress's use of the 
undefined term "prescription" in § 829, the Court's reading of "control" 
in § 821 is manifestly erroneous. The Court urges, ante, at 12-13, that 
"control" is a term defined in part A of the subchapter (entitled 
"Introductory Provisions") to mean "to add a drug or other substance . . . 
to a schedule under part B of this subchapter," 21 U.S.C. § 802(5) 
(emphasis added). But § 821 is not included in "part B of this 
subchapter," which is entitled "Authority to Control; Standards and 
Schedules," and consists of the sections related to scheduling,  [*69]  21 
U.S.C. A. §§ 811-814 (main ed. and Supp. 2005), where the statutory 
definition is uniquely appropriate. Rather, § 821 is found in part C of 
the subchapter, §§ 821-830, entitled "Registration of Manufacturers, 
Distributors, and Dispensers of Controlled Substances," which includes all 
and only the provisions relating to the "manufacture, distribution, and 
dispensing of controlled substances," § 821. The artificial definition of 
"control" in § 802(5) has no conceivable application to the use of that 
word in § 821. Under that definition, "control" must take a substance as 
its direct object, see 21 U.S.C. § 802(5) ("to add a drug or other 
substance . . . to a schedule") -- and that is how "control" is 
consistently used throughout part B. See, e.g., §§ 811(b) ("proceedings . 
. . to control a drug or other substance"), 811(c) ("each drug or other 
substance proposed to be controlled or removed from the schedules"), 
811(d)(1) ("If control is required . . . the Attorney General shall issue 
an order controlling such drug . . . "), 812(b) ("Except where control is 
required . . . a drug or other substance may [*70]  not be placed in any 
schedule . . . "). In § 821, by contrast, the term "control" has as its 
object, not "a drug or other substance," but rather the processes of 
"manufacture, distribution, and dispensing of controlled substances." It 
could not be clearer that the artificial definition of "control" in § 
802(5) is inapplicable. It makes no sense to speak of "adding the 
manufacturing, distribution, and dispensing of substances to a schedule." 
We do not force term-of-art definitions into contexts where they plainly 
do not fit and produce nonsense. What is obviously intended in § 821 is 
the ordinary meaning of "control" -- namely, "to exercise restraining or 
directing influence over; to dominate; regulate; hence, to hold from 
action; to curb," Webster's Second 580. "Control" is regularly used in 
this ordinary sense elsewhere in part C of the subchapter. See, e.g., 21 
U.S.C. §§ 823(a)(1), (b)(1), (d)(1), (e)(1), (h)(1) ("maintenance of 
effective controls against diversion"); §§ 823(a)(5), (d)(5) 
("establishment of effective control against diversion"); § 
823(g)(2)(H)(i) ("to exercise supervision or control over the practice of 
medicine"); [*71]  § 830(b)(1)(C) ("a listed chemical under the control of 
the regulated person"); § 830(c)(2)(D) ("chemical control laws") (emphases 
added).

When the word is given its ordinary meaning, the Attorney General's 
interpretation of the prescription requirement of § 829 plainly "relates 
to the . . . control of the . . . dispensing of controlled substances," 21 
U.S.C. A. § 821 (Supp. 2005) (emphasis added), since a prescription is the 
chief requirement for "dispensing" such drugs, see § 829. The same meaning 
is compelled by the fact that § 821 is the first section not of part B of 
the subchapter, which deals entirely with "control" in the artificial 
sense, but of part C, every section of which relates to the "registration 
and control of the manufacture, distribution, and dispensing of controlled 
substances," § 821. See §§ 822 (persons required to register), 823 
(registration requirements), 824 (denial, revocation, or suspension of 
registration), 825 (labeling and packaging), 826 (production quotas for 
controlled substances), 827 (recordkeeping and reporting requirements of 
registrants), 828 (order forms), 829 (prescription requirements), 830 
(regulation [*72]  of listed chemicals and certain machines). It would be 
peculiar for the first section of this part to authorize rulemaking for 
matters covered by the previous part. The only sensible interpretation of 
§ 821 is that it gives the Attorney General interpretive authority over 
the provisions of part C, all of which "relate to the registration and 
control of the manufacture, distribution, and dispensing of controlled 
substances." These provisions include both the prescription requirement of 
§ 829, and the criteria for registration and deregistration of §§ 823 and 
824 (as relevant below, see Part III, infra). n3

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n3 The Court concludes that "even if 'control' in § 821 were understood to 
signify something other than its statutory definition, it would not 
support the Interpretive Rule." Ante, at 13. That conclusion rests upon a 
misidentification of the text that the Attorney General, pursuant to his 
"control" authority, is interpreting. No one argues that the word 
"control" in § 821 gives the Attorney General "authority to define 
diversion based on his view of legitimate medical practice," ibid. Rather, 
that word authorizes the Attorney General to interpret (among other 
things) the "prescription" requirement of § 829. The question then becomes 
whether the phrase "legitimate medical purpose" (which all agree is 
included in "prescription") is at least open to the interpretation 
announced in the Directive. See Chevron U.S.A. Inc., v. NDRC, 467 U.S. 
837, 843, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). And of course it is -- 
as the Court effectively concedes two pages earlier: "All would agree, we 
should think, that the statutory phrase 'legitimate medical purpose' is a 
generality, susceptible to more precise definition and open to varying 
constructions, and thus ambiguous in the relevant sense." Ante, at 11 
(citing Chevron).


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C

In sum, the Directive's construction of "legitimate medical purpose" is a 
perfectly valid agency interpretation of its own regulation; and if not 
that, a perfectly valid agency interpretation of the statute. No one 
contends that the construction is "plainly erroneous or inconsistent with 
the regulation," Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 
S. Ct. 1215, 89 L. Ed. 1700 (1945), or beyond the scope of ambiguity in 
the statute, see Chevron, 467 U.S., at 843, 104 S. Ct. 2778, 81 L. Ed. 2d 
694. In fact, as explained below, the Directive provides the most natural 
interpretation of the Regulation and of the statute. The Directive thus 
definitively establishes that a doctor's order authorizing the 
dispensation of a Schedule II substance for the purpose of assisting a 
suicide is not a "prescription" within the meaning of § 829.

Once this conclusion is established, the other two conclusions in the 
Directive follow inevitably. Under our reasoning in Moore, writing 
prescriptions that are illegitimate under § 829 is certainly not "in the 
[usual] course of professional practice" under § 802(21) and thus not 
"authorized by this subchapter" under § 841(a). See 423 U.S., at 138, 
140-141, 96 S. Ct. 335, 46 L. Ed. 2d 333. [*74]  A doctor who does this 
may thus be prosecuted under § 841(a), and so it follows that such conduct 
"violates the Controlled Substances Act," 66 Fed. Reg. 56608. And since 
such conduct is thus not in "compliance with applicable . . . Federal . . 
. laws relating to controlled substances," 21 U.S.C. § 823(f)(4), and may 
also be fairly judged to "threaten the public health and safety," § 
823(f)(5), it follows that "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 (emphases added).

II

Even if the Directive were entitled to no deference whatever, the most 
reasonable interpretation of the Regulation and of the statute would 
produce the same result. Virtually every relevant source of authoritative 
meaning confirms that the phrase "legitimate medical purpose" n4 does not 
include intentionally assisting suicide. "Medicine" refers to "the science 
and art dealing with the prevention, cure, or alleviation of [*75] 
disease." Webster's Second 1527. The use of the word "legitimate" connotes 
an objective standard of "medicine," and our presumption that the CSA 
creates a uniform federal law regulating the dispensation of controlled 
substances, see Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 
30, 43, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989), means that this 
objective standard must be a federal one. As recounted in detail in the 
memorandum for the Attorney General that is attached as an appendix to the 
Directive (OLC Memo), virtually every medical authority from Hippocrates 
to the current American Medical Association (AMA) confirms that assisting 
suicide has seldom or never been viewed as a form of "prevention, cure, or 
alleviation of disease," and (even more so) that assisting suicide is not 
a "legitimate" branch of that "science and art." See OLC Memo, App. to 
Pet. for Cert. 113a-130a. Indeed, the AMA has determined that 
"'physician-assisted suicide is fundamentally incompatible with the 
physician's role as a healer.'" Washington v. Glucksberg, 521 U.S. 702, 
731, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997). "The 
overwhelming weight of authority in judicial decisions, the past and 
present policies of nearly all [*76]  of the States and of the Federal 
Government, and the clear, firm and unequivocal views of the leading 
associations within the American medical and nursing professions, 
establish that assisting in suicide . . . is not a legitimate medical 
purpose." OLC Memo, supra, at 129a. See also Glucksberg, supra, at 710, n. 
8, 117 S. Ct. 2258, 117 S. Ct. 2302 (prohibitions or condemnations of 
assisted suicide in 50 jurisdictions, including 47 States, the District of 
Columbia, and 2 Territories).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n4 This phrase appears only in the Regulation and not in the relevant 
section of the statute. But as pointed out earlier, the Court does not 
contest that this is the most reasonable interpretation of the section -- 
regarding it, indeed, as a mere "parroting" of the statute.


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In the face of this "overwhelming weight of authority," the Court's 
admission that "on its own, this understanding of medicine's boundaries is 
at least reasonable," ante, at 26 (emphasis added), tests the limits of 
understatement. The only explanation for such [*77]  a distortion is that 
the Court confuses the normative inquiry of what the boundaries of 
medicine should be -- which it is laudably hesitant to undertake -- with 
the objective inquiry of what the accepted definition of "medicine" is. 
The same confusion is reflected in the Court's remarkable statement that 
"the primary problem with the Government's argument . . . is its 
assumption that the CSA impliedly authorizes an Executive officer to bar a 
use simply because it may be inconsistent with one reasonable 
understanding of medical practice." Ibid. (emphasis added). The fact that 
many in Oregon believe that the boundaries of "legitimate medicine" should 
be extended to include assisted suicide does not change the fact that the 
overwhelming weight of authority (including the 47 States that condemn 
physician-assisted suicide) confirms that they have not yet been so 
extended. Not even those of our Eighth Amendment cases most generous in 
discerning an "evolution" of national standards would have found, on this 
record, that the concept of "legitimate medicine" has evolved so far. See 
Roper v. Simmons, 543 U.S. 551, 564-567, 125 S. Ct. 1183, 161 L. Ed. 2d 1 
(2005).

The Court contends [*78]  that the phrase "legitimate medical purpose" 
cannot be read to establish a broad, uniform federal standard for the 
medically proper use of controlled substances. Ante, at 22. But it also 
rejects the most plausible alternative proposition, urged by the State, 
that any use authorized under state law constitutes a "legitimate medical 
purpose." (The Court is perhaps leery of embracing this position because 
the State candidly admitted at oral argument that, on its view, a State 
could exempt from the CSA's coverage the use of morphine to achieve 
euphoria.) Instead, the Court reverse-engineers an approach somewhere 
between a uniform national standard and a state-by-state approach, holding 
(with no basis in the CSA's text) that "legitimate medical purpose" refers 
to all uses of drugs unrelated to "addiction and recreational abuse." 
Ante, at 27. Thus, though the Court pays lipservice to state autonomy, see 
ante, 23-24, its standard for "legitimate medical purpose" is in fact a 
hazily defined federal standard based on its purposive reading of the CSA, 
and extracted from obliquely relevant sections of the Act. In particular, 
relying on its observation that the criteria [*79]  for scheduling 
controlled substances are primarily concerned with "addiction or abnormal 
effects on the nervous system," ante, at 26-27 (citing 21 U.S.C. §§ 
811(c)(7), 812(b), 811(f), 801a), the Court concludes that the CSA's 
prescription requirement must be interpreted in light of this narrow view 
of the statute's purpose.

Even assuming, however, that the principal concern of the CSA is the 
curtailment of "addiction and recreational abuse," there is no reason to 
think that this is its exclusive concern. We have repeatedly observed that 
Congress often passes statutes that sweep more broadly than the main 
problem they were designed to address. "Statutory prohibitions often go 
beyond the principal evil to cover reasonably comparable evils, and it is 
ultimately the provisions of our laws rather than the principal concerns 
of our legislators by which we are governed." Oncale v. Sundowner Offshore 
Services, Inc., 523 U.S. 75, 79, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). 
See also H. J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 248, 
109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989).

The scheduling provisions of the CSA on which the Court relies confirm 
that the CSA's "design,  [*80]  " ante, at 23, is not as narrow as the 
Court asserts. In making scheduling determinations, the Attorney General 
must not only consider a drug's "psychic or physiological dependence 
liability" as the Court points out, ante, at 26 (citing 21 U.S.C. § 
811(c)(7)), but must also consider such broad factors as "the state of 
current scientific knowledge regarding the drug or other substance," § 
811(c)(3), and (most notably) "what, if any, risk there is to the public 
health," § 811(c)(6). If the latter factor were limited to 
addiction-related health risks, as the Court supposes, it would be 
redundant of § 811(c)(7). Moreover, in making registration determinations 
regarding manufacturers and distributors, the Attorney General "shall" 
consider "such other factors as may be relevant to and consistent with the 
public health and safety," §§ 823(a)(6), (b)(5), (d)(6), (e)(5) (emphasis 
added) -- over and above the risk of "diversion" of controlled substances, 
§§ 823(a)(1), (a)(5), (b)(1), (d)(1), (d)(5), (e)(1). And, most relevant 
of all, in registering and deregistering physicians, the Attorney General 
"may deny an application for such registration if he [*81]  determines 
that the issuance of such registration would be inconsistent with the 
public interest," § 823(f); see also § 824(a)(4), and in making that 
determination "shall" consider "such other conduct which may threaten the 
public health and safety," § 823(f)(5). All of these provisions, not just 
those selectively cited by the Court, shed light upon the CSA's repeated 
references to the undefined term "abuse." See §§ 811(a)(1)(A), (c)(1), 
(c)(4), (c)(5); §§ 812(b)(1)(A), (b)(2)(A), (b)(3)(A), (b)(4)(A), 
(b)(5)(A).

By disregarding all these public-interest, public-health, and 
public-safety objectives, and limiting the CSA to "addiction and 
recreational abuse," the Court rules out the prohibition of 
anabolic-steroid use for bodybuilding purposes. It seeks to avoid this 
consequence by invoking the Anabolic Steroids Control Act of 1990, 104 
Stat. 4851. Ante, at 27. But the only effect of that legislation is to 
make anabolic steroids controlled drugs under Schedule III of the CSA. If 
the only basis for control is (as the Court says) "addiction and 
recreational abuse," dispensation of these drugs for bodybuilding could 
not be proscribed.

Although, as I have described, the [*82]  Court's opinion no more defers 
to state law than does the Directive, the Court relies on two provisions 
for the conclusion that "the structure and operation of the CSA presume 
and rely upon a functioning medical profession regulated under the States' 
police powers," ante, at 23 -- namely the registration provisions of § 
823(f) and the nonpre-emption provision of § 903. Reliance on the former 
is particularly unfortunate, because the Court's own analysis recounts how 
Congress amended § 823(f) in 1984 in order to liberate the Attorney 
General's power over registration from the control of state regulators. 
See ante, at 14; 21 U.S.C. § 823(f); see also Brief for Petitioners 34-35. 
And the nonpre-emption clause is embarrassingly inapplicable, since it 
merely disclaims field pre-emption, and affirmatively prescribes federal 
pre-emption whenever state law creates a conflict. n5 In any event, the 
Directive does not purport to pre-empt state law in any way, not even by 
conflict pre-emption -- unless the Court is under the misimpression that 
some States require assisted suicide. The Directive merely interprets the 
CSA to prohibit, like countless other [*83]  federal criminal provisions, 
conduct that happens not to be forbidden under state law (or at least the 
law of the State of Oregon).

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n5 Title 21 U.S.C. § 903 reads, in relevant part, as follows: "No 
provision of this subchapter shall be construed as indicating an intent on 
the part of the Congress to occupy the field in which that provision 
operates, including criminal penalties, to the exclusion of any State law 
on the same subject matter . . . unless there is a positive conflict . . . 
."


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With regard to the CSA's registration provisions, 21 U.S.C. §§ 823(f), 
824(a), the Court argues that the statute cannot fairly be read to "'hide 
elephants in mouseholes'" by delegating to the Attorney General the power 
to determine the legitimacy of medical practices in "'vague terms or 
ancillary provisions.'" Ante, at 20 (quoting Whitman v. American Trucking 
Assns., Inc., 531 U.S. 457, 468, 121 S. Ct. 903, 149 L. Ed. 2d 1 (2001)). 
This case bears not the remotest resemblance to Whitman,  [*84]  which 
held that "Congress . . . does not alter the fundamental details of a 
regulatory scheme in vague terms or ancillary provisions." Ibid. (emphasis 
added). The Attorney General's power to issue regulations against 
questionable uses of controlled substances in no way alters "the 
fundamental details" of the CSA. I am aware of only four areas in which 
the Department of Justice has exercised that power to regulate uses of 
controlled substances unrelated to "addiction and recreational abuse" as 
the Court apparently understands that phrase: assisted suicide, aggressive 
pain management therapy, anabolic-steroid use, and cosmetic weight-loss 
therapy. See, e.g., In re Harline, 65 Fed. Reg. 5665, 5667 (2000) (weight 
loss); In re Tecca, 62 Fed. Reg. 12842, 12846 (1997) (anabolic steroids); 
In re Roth, 60 Fed. Reg. 62262, 62263, 62267 (1995) (pain management). 
There is no indication that enforcement in these areas interferes with the 
prosecution of "drug abuse" as the Court understands it. Unlike in 
Whitman, the Attorney General's additional power to address other forms of 
drug "abuse" does absolutely nothing to [*85]  undermine the central 
features of this regulatory scheme. Of course it was critical to our 
analysis in Whitman that the language of the provision did not bear the 
meaning that respondents sought to give it. See 531 U.S., at 465, 121 S. 
Ct. 903, 149 L. Ed. 2d 1. Here, for the reasons stated above, the 
provision is most naturally interpreted to incorporate a uniform federal 
standard for legitimacy of medical practice. n6

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n6 The other case cited by the Court, FDA v. Brown & Williamson Tobacco 
Corp., 529 U.S. 120, 120 S. Ct. 1291, 146 L. Ed. 2d 121 (2000), is even 
more obviously inapt. There we relied on the first step of the Chevron 
analysis to determine that Congress had spoken to the precise issue in 
question, impliedly repealing the grant of jurisdiction on which the FDA 
relied. 529 U.S., at 160-161, 120 S. Ct. 1291, 146 L. Ed. 2d 121. Here, 
Congress has not expressly or impliedly authorized the practice of 
assisted suicide, or indeed "spoken directly" to the subject in any way 
beyond the text of the CSA.


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Finally, respondents argue that the Attorney General [*86]  must defer to 
state-law judgments about what constitutes legitimate medicine, on the 
ground that Congress must speak clearly to impose such a uniform federal 
standard upon the States. But no line of our clear-statement cases is 
applicable here. The canon of avoidance does not apply, since the 
Directive does not push the outer limits of Congress's commerce power, 
compare Solid Waste Agency v. United States Army Corps of Eng'rs, 531 U.S. 
159, 172, 121 S. Ct. 675, 148 L. Ed. 2d 576 (2001) (regulation of isolated 
ponds), with United States v. Sullivan, 332 U.S. 689, 698, 68 S. Ct. 331, 
92 L. Ed. 297 (1948) (regulation of labeling of drugs shipped in 
interstate commerce), or impinge on a core aspect of state sovereignty, 
cf. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S. Ct. 
3142, 87 L. Ed. 2d 171 (1985) (sovereign immunity); Gregory v. Ashcroft, 
501 U.S. 452, 460, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991) 
(qualifications of state government officials). The clear-statement rule 
based on the presumption against pre-emption does not apply because the 
Directive does not pre-empt any state law, cf. id., at 456-457, 111 S. Ct. 
2395, 115 L. Ed. 2d 410; Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 
359, 122 S. Ct. 2151, 153 L. Ed. 2d 375 (2002). [*87]  And finally, no 
clear statement is required on the ground that the Directive intrudes upon 
an area traditionally reserved exclusively to the States, cf. BFP v. 
Resolution Trust Corporation, 511 U.S. 531, 544, 114 S. Ct. 1757, 128 L. 
Ed. 2d 556 (1994) (state regulation of titles to real property), because 
the Federal Government has pervasively regulated the dispensation of drugs 
for over 100 years. See generally Brief for Pro-Life Legal Defense Fund et 
al. as Amici Curiae 3-15. It would be a novel and massive expansion of the 
clear-statement rule to apply it in a commerce case not involving 
pre-emption or constitutional avoidance, merely because Congress has 
chosen to prohibit conduct that a State has made a contrary policy 
judgment to permit. See Sullivan, supra, at 693, 68 S. Ct. 331, 92 L. Ed. 
2d 297.

III

Even if the Regulation did not exist and "prescription" in § 829 could not 
be interpreted to require a "legitimate medical purpose," the Directive's 
conclusion that "prescribing, dispensing, or administering federally 
controlled substances . . . by a physician . . . may 'render his 
registration . . . inconsistent with the public interest' and therefore 
subject to possible suspension or revocation [*88]  under 21 U.S.C. [§ 
]824(a)(4)," 66 Fed. Reg. 56608, would nevertheless be unassailable in 
this Court.

Sections 823(f) and 824(a) explicitly grant the Attorney General the 
authority to register and deregister physicians, and his discretion in 
exercising that authority is spelled out in very broad terms. He may 
refuse to register or deregister if he determines that registration is 
"inconsistent with the public interest," 21 U.S.C. § 823(f), after 
considering five factors, the fifth of which is "such other conduct which 
may threaten the public health and safety," § 823(f)(5). See also In re 
Arora, 60 Fed. Reg. 4447, 4448 (1995) ("It is well established that these 
factors are to be considered in the disjunctive, i.e., the Deputy 
Administrator may properly rely on any one or a combination of factors, 
and give each factor the weight he deems appropriate"). As the Court 
points out, these broad standards were enacted in the 1984 amendments for 
the specific purpose of freeing the Attorney General's discretion over 
registration from the decisions of state authorities. See ante, at 13.

The fact that assisted-suicide [*89]  prescriptions are issued in 
violation of § 829 is of course sufficient to support the Directive's 
conclusion that issuing them may be cause for deregistration: such 
prescriptions would violate the fourth factor of § 823(f), namely 
"compliance with applicable . . . Federal . . . laws relating to 
controlled substances," 21 U.S.C. § 823(f)(4). But the Attorney General 
did not rely solely on subsection (f)(4) in reaching his conclusion that 
registration would be "inconsistent with the public interest"; nothing in 
the text of the Directive indicates that. Subsection (f)(5) ("such other 
conduct which may threaten the public health and safety") provides an 
independent, alternative basis for the Directive's conclusion regarding 
deregistration -- provided that the Attorney General has authority to 
interpret "public interest" and "public health and safety" in § 823(f) to 
exclude assisted suicide.

Three considerations make it perfectly clear that the statute confers 
authority to interpret these phrases upon the Attorney General. First, the 
Attorney General is solely and explicitly charged with administering the 
registration and deregistration provisions. See §§ 823(f),  [*90]  824(a). 
By making the criteria for such registration and deregistration such 
obviously ambiguous factors as "public interest" and "public health and 
safety," Congress implicitly (but clearly) gave the Attorney General 
authority to interpret those criteria -- whether or not there is any 
explicit delegation provision in the statute. "Sometimes the legislative 
delegation to an agency on a particular question is implicit rather than 
explicit. In such a case, a court may not substitute its own construction 
of a statutory provision for a reasonable interpretation made by the 
administrator of an agency." Chevron, 467 U.S., at 844, 104 S. Ct. 2778, 
81 L. Ed. 2d 694. The Court's exclusive focus on the explicit delegation 
provisions is, at best, a fossil of our pre-Chevron era; at least since 
Chevron, we have not conditioned our deferral to agency interpretations 
upon the existence of explicit delegation provisions. United States v. 
Mead Corp., 533 U.S. 218, 229, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001), 
left this principle of implicit delegation intact.

Second, even if explicit delegation were required, Congress provided it in 
§ 821, which authorizes the Attorney General to "promulgate rules and 
regulations [*91]  . . . relating to the registration and control of the 
manufacture, distribution, and dispensing of controlled substances . . . 
." (Emphasis added.) Because "dispensing" refers to the delivery of a 
controlled substance "pursuant to the lawful order of, a practitioner," 21 
U.S.C. § 802(10), the deregistration of such practitioners for writing 
impermissible orders "relates to the registration . . . of the . . . 
dispensing" of controlled substances, 21 U.S.C. A. § 821 (Supp. 2005).

Third, § 821 also gives the Attorney General authority to promulgate rules 
and regulations "relating to the . . . control of the . . . dispensing of 
controlled substances." As discussed earlier, it is plain that the 
ordinary meaning of "control" must apply to § 821, so that the plain 
import of the provision is to grant the Attorney General rulemaking 
authority over all the provisions of part C of the CSA, 21 U.S.C. A. §§ 
821-830 (main ed. and Supp. 2005). Registering and deregistering the 
practitioners who issue the prescriptions necessary for lawful 
dispensation of controlled substances plainly "relates to the . . . 
control of the [*92]  . . . dispensing of controlled substances." § 821 
(Supp. 2005).

The Attorney General is thus authorized to promulgate regulations 
interpreting §§ 823(f) and 824(a), both by implicit delegation in § 823(f) 
and by two grounds of explicit delegation in § 821. The Court nevertheless 
holds that this triply unambiguous delegation cannot be given full effect 
because "the design of the statute," ante, at 18, evinces the intent to 
grant the Secretary of Health and Human Services exclusive authority over 
scientific and medical determinations. This proposition is not remotely 
plausible. The Court cites as authority for the Secretary's exclusive 
authority two specific areas in which his medical determinations are said 
to be binding on the Attorney General -- with regard to the "scientific 
and medical evaluation" of a drug's effects that precedes its scheduling, 
§ 811(b), and with regard to "the appropriate methods of professional 
practice in the medical treatment of the narcotic addiction of various 
classes of narcotic addicts," 42 U.S.C. § 290bb-2a; see also 21 U.S.C. § 
823(g) (2000 ed. and Supp. II). See ante, at 17-19. Far from [*93] 
establishing a general principle of Secretary supremacy with regard to all 
scientific and medical determinations, the fact that Congress granted the 
Secretary specifically defined authority in the areas of scheduling and 
addiction treatment, without otherwise mentioning him in the registration 
provisions, suggests, to the contrary, that Congress envisioned no role 
for the Secretary in that area -- where, as we have said, interpretive 
authority was both implicitly and explicitly conferred upon the Attorney 
General.

Even if we could rewrite statutes to accord with sensible "design," it is 
far from a certainty that the Secretary, rather than the Attorney General, 
ought to control the registration of physicians. Though registration 
decisions sometimes require judgments about the legitimacy of medical 
practices, the Department of Justice has seemingly had no difficulty 
making them. See In re Harline, 65 Fed. Reg. 5665; In re Tecca, 62 Fed. 
Reg. 12842; In re Roth, 60 Fed. Reg. 62262. But unlike decisions about 
whether a substance should be scheduled or whether a narcotics addiction 
treatment is legitimate, registration decisions [*94]  are not 
exclusively, or even primarily, concerned with "medical [and] scientific" 
factors. See 21 U.S.C. § 823(f). Rather, the decision to register, or to 
bring an action to deregister, an individual physician implicates all the 
policy goals and competing enforcement priorities that attend any exercise 
of prosecutorial discretion. It is entirely reasonable to think (as 
Congress evidently did) that it would be easier for the Attorney General 
occasionally to make judgments about the legitimacy of medical practices 
than it would be for the Secretary to get into the business of law 
enforcement. It is, in other words, perfectly consistent with an 
intelligent "design of the statute" to give the Nation's chief law 
enforcement official, not its chief health official, broad discretion over 
the substantive standards that govern registration and deregistration. 
That is especially true where the contested "scientific and medical" 
judgment at issue has to do with the legitimacy of physician-assisted 
suicide, which ultimately rests, not on "science" or "medicine," but on a 
naked value judgment. It no more depends upon a "quintessentially medical 
judgment," ante [*95]  , at 20, than does the legitimacy of polygamy or 
eugenic infanticide. And it requires no particular medical training to 
undertake the objective inquiry into how the continuing traditions of 
Western medicine have consistently treated this subject. See OLC Memo, 
App. to Pet. for Cert. 113a-130a. The Secretary's supposedly superior 
"medical expertise" to make "medical judgments," ante, at 19-20, is 
strikingly irrelevant to the case at hand.

The Court also reasons that, even if the CSA grants the Attorney General 
authority to interpret § 823(f), the Directive does not purport to 
exercise that authority, because it "does not undertake the five-factor 
analysis" of § 823(f) and does not "on its face purport to be an 
application of the registration provision in § 823(f)." Ante, at 14 
(emphasis added). This reasoning is sophistic. It would be improper -- 
indeed, impossible -- for the Attorney General to "undertake the 
five-factor analysis" of § 823(f) and to "apply the registration 
provision" outside the context of an actual enforcement proceeding. But of 
course the Attorney General may issue regulations to clarify his 
interpretation of the five factors, and to signal [*96]  how he will apply 
them in future enforcement proceedings. That is what the Directive plainly 
purports to do by citing § 824(a)(4), and that is why the Directive's 
conclusion on deregistration is couched in conditional terms: "Such 
conduct by a physician . . . 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 (emphasis added).

It follows from what we have said that the Attorney General's 
authoritative interpretations of "public interest" and "public health and 
safety" in § 823(f) are subject to Chevron deference. As noted earlier, 
the Court does not contest that the absence of notice-and-comment 
procedures for the Directive renders Chevron inapplicable. And there is no 
serious argument that "Congress has directly spoken to the precise 
question at issue," or that the Directive's interpretations of "public 
health and safety" and "inconsistent with the public interest" are not 
"permissible." Chevron, 467 U.S., at 842-843, 104 S. Ct. 2778, 81 L. Ed. 
2d 694. On the latter point, in fact, the condemnation of assisted suicide 
[*97]  by 50 American jurisdictions supports the Attorney General's view. 
The Attorney General may therefore weigh a physician's participation in 
assisted suicide as a factor counseling against his registration, or in 
favor of deregistration, under § 823(f).

In concluding to the contrary, the Court merely presents the conclusory 
assertion that "it is doubtful the Attorney General could cite the 'public 
interest' or 'public health' to deregister a physician simply because he 
deemed a controversial practice permitted by state law to have an 
illegitimate medical purpose." Ante, at 17. But why on earth not? -- 
especially when he has interpreted the relevant statutory factors in 
advance to give fair warning that such a practice is "inconsistent with 
the public interest." The Attorney General's discretion to determine the 
public interest in this area is admittedly broad -- but certainly no 
broader than other congressionally conferred Executive powers that we have 
upheld in the past. See, e.g., National Broadcasting Co. v. United States, 
319 U.S. 190, 216-217, 63 S. Ct. 997, 87 L. Ed. 1344 (1943) ("public 
interest"); New York Central Securities Corp. v. United States, 287 U.S. 
12, 24-25, 53 S. Ct. 45, 77 L. Ed. 138 (1932) [*98]  (same); see also 
Mistretta v. United States, 488 U.S. 361, 415-416, 109 S. Ct. 647, 102 L. 
Ed. 2d 714 (1989) (SCALIA, J., dissenting).

* * *

In sum, the Directive's first conclusion -- namely that physician-assisted 
suicide is not a "legitimate medical purpose" -- is supported both by the 
deference we owe to the agency's interpretation of its own regulations and 
by the deference we owe to its interpretation of the statute. The other 
two conclusions -- (2) that prescribing controlled drugs to assist suicide 
violates the CSA, and (3) that such conduct is also "inconsistent with the 
public interest" -- are inevitable consequences of that first conclusion. 
Moreover, the third conclusion, standing alone, is one that the Attorney 
General is authorized to make.

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 [*99]  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, 33 S. Ct. 281, 57 L. Ed. 523 (1913); 
Lottery Case, 188 U.S. 321, 356, 23 S. Ct. 321, 47 L. Ed. 492 (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.

JUSTICE [*100]  THOMAS, dissenting.

When Angel Raich and Diane Monson challenged the application of the 
Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., to their purely 
intrastate possession of marijuana for medical use as authorized under 
California law, a majority of this Court (a mere seven months ago) 
determined that the CSA effectively invalidated California's law because 
"the CSA is a comprehensive regulatory regime specifically designed to 
regulate which controlled substances can be utilized for medicinal 
purposes, and in what manner." Gonzales v. Raich, 545 U.S. ___, ___, 125 
S. Ct. 2195, 2211, 162 L. Ed. 2d 1, 25 (2005) (emphasis added). The 
majority employed unambiguous language, concluding that the "manner" in 
which controlled substances can be utilized "for medicinal purposes" is 
one of the "core activities regulated by the CSA." Id., at ___ , 125 S. 
Ct. 2195, 2212, 162 L. Ed. 2d 1, 25). And, it described the CSA as 
"creating a comprehensive framework for regulating the production, 
distribution, and possession of . . . 'controlled substances,'" including 
those substances that "'have a useful and legitimate medical purpose,'" in 
order to "foster the beneficial use of those medications" and [*101]  "to 
prevent their misuse." Id., at ___, 125 S. Ct. 2195, 2203, 162 L. Ed. 2d 
1, 16.

Today the majority beats a hasty retreat from these conclusions. 
Confronted with a regulation that broadly requires all prescriptions to be 
issued for a "legitimate medical purpose," 21 CFR § 1306.04(a) (2005), a 
regulation recognized in Raich as part of the Federal Government's "closed 
. . . system" for regulating the "manner" in "which controlled substances 
can be utilized for medicinal purposes," 545 U.S., at ___, ___ 125 S. Ct. 
2195, 2211,162 L. Ed. 2d 1, 25, the majority rejects the Attorney 
General's admittedly "at least reasonable," ante, at 26, determination 
that administering controlled substances to facilitate a patient's death 
is not a "'legitimate medical purpose.'" The majority does so based on its 
conclusion that the CSA is only concerned with the regulation of "medical 
practice insofar as it bars doctors from using their prescription-writing 
powers as a means to engage in illicit drug dealing and trafficking as 
conventionally understood." Ante, at 23. In other words, in stark contrast 
to Raich's broad conclusions about the scope of the CSA as it pertains to 
the medicinal use of controlled substances, today this [*102]  Court 
concludes that the CSA is merely concerned with fighting "'drug abuse'" 
and only insofar as that abuse leads to "addiction or abnormal effects on 
the nervous system." n1 Ante, at 26.

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n1 The majority does not expressly address whether the ingestion of a 
quantity of drugs that is sufficient to cause death has an "abnormal 
effect on the nervous system," ante, at 25, though it implicitly rejects 
such a conclusion.


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The majority's newfound understanding of the CSA as a statute of limited 
reach is all the more puzzling because it rests upon constitutional 
principles that the majority of the Court rejected in Raich. 
Notwithstanding the States'" 'traditional police powers to define the 
criminal law and to protect the health, safety, and welfare of their 
citizens,'" 545 U.S., at ___, n. 38, 125 S. Ct. 2195, 2213, 162 L. Ed. 2d 
1, 26), the Raich majority concluded that the CSA applied to the 
intrastate possession of marijuana for medicinal purposes authorized by 
California law because "Congress could have rationally"  [*103]  concluded 
that such an application was necessary to the regulation of the "larger 
interstate marijuana market." Id., at ___, 125 S. Ct. 2195, 2208, 2213162 
L. Ed. 2d 1, 21, 27. Here, by contrast, the majority's restrictive 
interpretation of the CSA is based in no small part on "the structure and 
limitations of federalism, which allow the States '"great latitude under 
their police powers to legislate as to the protection of the lives, limbs, 
health, comfort, and quiet of all persons."' " Ante, at 23 (quoting 
Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S. Ct. 2240, 135 L. Ed. 2d 
700 (1996), in turn quoting Metropolitan Life Ins. Co. v. Massachusetts, 
471 U.S. 724, 756, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985)). According to 
the majority, these "background principles of our federal system . . . 
belie the notion that Congress would use . . . an obscure grant of 
authority to regulate areas traditionally supervised by the States' police 
power." Ante, at 28.

Of course there is nothing "obscure" about the CSA's grant of authority to 
the Attorney General. Ante, p. ___ (SCALIA, J., dissenting). And, the 
Attorney General's conclusion that the CSA prohibits the States from 
authorizing physician assisted suicide is admittedly [*104]  "at least 
reasonable," ante, at 26 (opinion of the Court), and is therefore entitled 
to deference. Ante, at 6-7 (SCALIA, J., dissenting). While the scope of 
the CSA and the Attorney General's power thereunder are sweeping, and 
perhaps troubling, such expansive federal legislation and broad grants of 
authority to administrative agencies are merely the inevitable and 
inexorable consequence of this Court's Commerce Clause and 
separation-of-powers jurisprudence. See, e.g., Raich, supra; Whitman v. 
American Trucking Assns., Inc., 531 U.S. 457, 121 S. Ct. 903, 149 L. Ed. 
2d 1 (2001).

I agree with limiting the applications of the CSA in a manner consistent 
with the principles of federalism and our constitutional structure. Raich, 
supra, at ___ (THOMAS, J., dissenting); cf. Whitman, supra, at 486-487, 
121 S. Ct. 903, 149 L. Ed. 2d 1 (THOMAS, J., concurring) (noting 
constitutional concerns with broad delegations of authority to 
administrative agencies). But that is now water over the dam. The 
relevance of such considerations was at its zenith in Raich, when we 
considered whether the CSA could be applied to the intrastate possession 
of a controlled substance consistent with the limited federal [*105] 
powers enumerated by the Constitution. Such considerations have little, if 
any, relevance where, as here, we are merely presented with a question of 
statutory interpretation, and not the extent of constitutionally 
permissible federal power. This is particularly true where, as here, we 
are interpreting broad, straightforward language within a statutory 
framework that a majority of this Court has concluded is so comprehensive 
that it necessarily nullifies the States'" 'traditional . . . powers . . . 
to protect the health, safety, and welfare of their citizens.'" n2 Raich, 
supra, at ___, n. 38, 125 S. Ct. 2195, 2213, 162 L. Ed. 2d 1, 26). The 
Court's reliance upon the constitutional principles that it rejected in 
Raich -- albeit under the guise of statutory interpretation -- is 
perplexing to say the least. Accordingly, I respectfully dissent.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n2 Notably, respondents have not seriously pressed a constitutional claim 
here, conceding at oral argument that their "point is not necessarily that 
[the CSA] would be unconstitutional." Tr. of Oral Arg. 44. In any event, 
to the extent respondents do present a constitutional claim, they do so 
solely within the framework of Raich. Framed in this manner, the claim 
must fail. The respondents in Raich were "local growers and users of 
state-authorized, medical marijuana," who stood "outside the interstate 
drug market" and possessed "'medicinal marijuana . . . not intended for . 
. . the stream of commerce.'" 545 U.S., at ___, ___, 125 S. Ct. 2195, 
2201, 2232, 162 L. Ed. 2d 1, 13, 48 (THOMAS, J., dissenting). Here, by 
contrast, the respondent-physicians are active participants in the 
interstate controlled substances market, and the drugs they prescribe for 
assisting suicide have likely traveled in interstate commerce. If the 
respondents in Raich could not sustain a constitutional claim, then a 
fortiori respondents here cannot sustain one. Respondents' acceptance of 
Raich forecloses their constitutional challenge.


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