Gonzales v. Oregon

[Digitonomy]

A somewhat surprising decision on the heels of the ruling that allowed the federal government to regulate or prohibit medicinal marijuana within the state of California.

The logic of the court in this case seems to be a combination of 1.) federalism: the states, not the federal government, have authority to legalize or prohibit the scope of medicine, and generally to approve uses of a legal drug, 2.) separation of powers: (Congress enacted the CSA, but did not authorize the Attorney General to criminalize particular medical practices, 3.) duties of executive branch departments: (AG must accept the findings of the Secretary of Health and Human Services on scientific and medical matters.

Here are a few excerpts from the syllabus.

http://supct.law.cornell.edu/supct/html/04-623.ZS.html

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 here involves controlled substances listed in Schedule II, which are generally available only by written prescription...

[The Attorney General's rule] 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 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. 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 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. sect.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.

[Digitonomy]

Looks like Ashcroft was working on this issue even before he became AG.

Judges Reject US Bid to Block Assisted Suicide

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.

[a_cermak]

That's interesting. Wouldn't Ashcroft have been shooting has later case in the foot by attempting to pass legislation giving Congress that authority? Rather an admission that Congress didn't have it or didn't think it had it. Plus by failing to pass it, it rather makes it look like Congress didn't want that right.

I wonder if the Court deferred because in Oregon it was a direct choice of the electorate. It eked by its first time on the ballot but really picked up steam on its second (it won by like 20%).

It also doesn't look like its being abused in Oregon. There don't seem to be large number of people dying from it and some people pick up the pills and never use them. I think for some folks its just insurance--something to guard them against unbearable pain or unacceptable loss of autonomy. By having the pills, they feel they have more control.

Pax,

Amy

[Digitonomy]

Originally Posted by a_cermak

Wouldn't Ashcroft have been shooting has later case in the foot by attempting to pass legislation giving Congress that authority? Rather an admission that Congress didn't have it or didn't think it had it. Plus by failing to pass it, it rather makes it look like Congress didn't want that right.

Perhaps, but he just wanted the US to prevent practice of the Oregon system. He figured if Reno didn't think she could do it under CSA, give her explicit authority from Congress in a new law. I don't really think he contemplated being AG years later with Oregon already in effect, or he might not have introduced anything in Congress. Trouble is (in that imaginary scenario), another senator probably would have introduced it, and Republicans in Missouri would be wondering why he wasn't on board.

However, it does appear that the failed legislative history of an explicit authorization by Congress may have played a significant role in the decision. Maybe without it, the conservatives could have shaved off Kennedy from the majority and made it 5-4, in which situation the court would probably rehear the case next term in deference to O'Connor's successor.

I wonder if the Court deferred because in Oregon it was a direct choice of the electorate. It eked by its first time on the ballot but really picked up steam on its second (it won by like 20%).

I don't think that was much of an issue. Medical use of marijuana was the direct choice of the electorate in California, but that held no sway before the Supremes last year. The justices don't see themselves as trying to win popularity contests, although they're not so naive as to be unaware of what decisions would be particularly unpopular.

[the-3rd-parent]

I wish I could listen to the oral arguments and the oral opinions by the justices but though I've been able to find other court files like this online I can't find this one. I also heard that Justice Roberts voted against this. I'd like to read his opinion.

Honestly I think this got by as a technicality. But then again, I don't think the case should have got as far as the supreme court. If this is a state authority, than the state should never have decided this was ok.

[the-3rd-parent]

Why isn't Robert's dessent listed on this site?

[Digitonomy]

Originally Posted by the-3rd-parent

I wish I could listen to the oral arguments and the oral opinions by the justices but though I've been able to find other court files like this online I can't find this one.

The Court doesn't routinely release tapes of the oral arguments. They did so for the Bush v Gore case in 2000, and they did so also for one or two others within the last year. Hopefully this is a trend toward more frequent use of this practice.

Originally Posted by the-3rd-parent

Why isn't Robert's dessent listed on this site?

Roberts didn't issue his own dissent. He joined that of Scalia.

[Hildebrand]

the-3rd-parent,

Chief Justice Roberts is trying to get everyone to either support one opinion and one dissent. It didn't work with Thomas this time and I am happy he scolded the liberal justices with a separate dissent (although Thomas signed onto Scalia's dissent).

It did work with the abortion decision. Roberts got all 8 associate justices to agree in a 9-0 decision with no concurrences... on an abortion case! Wow!

[Digitonomy]

Originally Posted by Digitonomy

The Court doesn't routinely release tapes of the oral arguments.

You should ignore this member, he clearly doesn't know what he's talking about.

The audio of the case is found here, among other places.

Also, this was available not long after the case was argued. You can likewise listen to arguments in some cases not yet decided here.