[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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*66]
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
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*73]
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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
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 . . .
."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
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.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*106]
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