crossroads of administration law and federalism

Crossroads of Administrative Law and Federalism

Today's decision in Gonzales v. Oregon overturned a Justice Department interpretive ruling barred doctors from prescribing lethal drugs for suicides, in light of a law in Oregon allowing such practice. It is nearly purely an administrative law decision; however, the federalism principles sit on the sidelines of this one like Jack Nicholson at a Lakers game.

Quickly, a summary:

The legal question is whether a certain DOJ interpretive rule has any legal authority. The Controled Substances Act was inacted to combat drug abuse and control legitimate and illegitimate traffic in controlled substances; and criminalizes unauthorized dispensation of substances classified in any of its five schedules (classifications of drugs). The Attorney General may add, remove, or reschedule substances only after making particular findings, and on scientific and medical matters, the AG must accept the findings of the Secretary of Health and Human Services (Secretary).

An Oregon law exempts from civil or criminal liability a doctor who, compliance with the law's safeguards, dispenses or prescribes a lethal dose of drugs upon the request of a terminally ill patient.

In 2001, Attorney General Ashcroft issued an interpretive rule declaring that doctor-assisted suicide serves no "legitimate medical purpose" under federal drug control law, and that doctors who prescribed lethal drugs for this purpose risked their registration to prescribe drugs for their patients.

Interpretive rules are sometimes binding and sometimes not. To step back a moment, we must remember that government agencies have power only as given by their originating statutes; otherwise, non-elected regulatory bodies would replace the Constitutional system of a representative republic. So Congress enacts some piece of legislation in general terms, and then agencies take care of all the specifics. An agency is bound by the Act that directs it.

Of course, legislation is usually blurry on the corners, and agencies necessarily do some interpreting of the law. This is fine, if the interpretation is reasonable. What agencies cannot do is rewrite the law where it is unambiguous.

Here, the Court found that the Attorney General overreached the DOJ's authority under the Controlled Substances Act. Congress delegated to the Attorney General only the authority to promulgate rules relating to "registration" and "control" of the dispensing of controlled substances. "Control," under the statute, means "to add a ... substance to a schedule," following specified procedures.

"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 structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the State's police powers."

So. A read of this case is a good review of judicial deference to agency interpretations. I think the majority is right on the law, and that it is a fairly straightforward case. We can talk about the Scalia/Thomas/Roberts dissent later. I've read it and, surprise surprise, am not convinced.

Stepping away from the clear legal question, though, it is too easy to note the federalism issue involved (noting, all the while, that to have considered the federalism principle in deciding the case would be the height of judicial fault). We have, though, a federal agency versus the popular will of a state (an Oregon referendum overturned even it's own legislature to uphold the state law). Should an unelected federal official (here, Ashcroft) be able to nix a state's considered opinion? Is that what we want? (I don't answer these questions. I ask them.) (Typically, my answer these days is yes and no. More on that, sometime).

Stepping away from the actual legal question in the case concerning agency interpretive rules, all the policy issues bound up in the case are federalism principles. Take, for instance, the question of whether assisted suicide for terminally ill patients is legitimate medical practice. Is it? Does prescribing death take a doctor outside the practice of medicine? If so, what about doctors that advise families to transfer a patient to hospice care? The end of life, like it's beginining, is a powerful scientific and moral issue with which many thoughtful people wrestle and disagree. Should an unelected, single individual make that decision in an interpretive rule? Or should we allow different states to consider the issue?

Side note: Some folks are bringing up the medical marijuanna case where the Court allowed the federal government, under the commerce clause, to disallow California's law allowing medical marijuanna. In that case, though, there were specific congressional statues making even medical marijuanna illegal. Here, the Controlled Substances Act in no way addresses assisted suicide.