"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 (law)," Kennedy wrote for himself, retiring Justice Sandra Day O'Connor and Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, and Stephen Breyer.
The Court’s decision is here.
The decision begins with a reminder: “Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide.†Setting aside the Court’s lengthy discussion of the degree to which the Attorney General’s interpretation of federal drug laws is entitled to deference, the heart of the decision is an affirmation of the political process as the best means of resolving that debate. State legislators, rather than an unelected Attorney General, should consider the “morality, legality, and practicality of physician-assisted suicide.â€
The Court concluded that Ashcroft overstepped his authority -- “to make regulations for the ‘control’ of drugs†-- by attempting “to define standards of medical practice.†While the AG can establish controls “against diversion†of drugs, that power does “not give him authority to define diversion based on his view of legitimate medical practice.†In other words, leave medical issues to the doctors, Johnny.
Under the Government’s theory, moreover, the medical judgments the Attorney General could make are not limited 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.
Similarly, the AG’s authority to “deregister†physicians, depriving them of the authority to prescribe federally regulated drugs, can’t be extended to criminalize a particular use of a drug.
The [AG’s] Interpretive Rule thus purports to declare 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. …
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 … would be unrestrained.
Unrestrained power to criminalize conduct is exactly the kind of power Ashcroft craved, and it isn’t surprising that his successor agrees with the Ashcroft power grab.
The Court distinguished Raich (the medical marijuana law) because the sale of marijuana is pervasively regulated by federal law, leaving no room for states to enact a law that is inconsistent with that regulatory scheme. In contrast, physician-assisted suicide isn’t addressed by federal law, except in the AG’s imagination.
In the face of the CSA’s silence on the practice of medicine generally 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.
In the absence of federal legislation to regulate suicide to the exclusion of states, the AG should have deferred to Oregon’s right to enact its own law. States are supposed to be the laboratories of new ideas, after all.
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 bottom line: this is the United States of America, not the United State of Ashcroft.
