Gonzalez v. Oregon

Big day today at the U.S. Supreme Court, where the Court will take up the Oregon Death With Dignity Act. This one is hard to predict. On the one hand, the feds argue that the Controlled Substances Act gives the Attorney General the power to interpret the CSA and promulgate rules, which authority has been delegated to the Drug Enforcement Agency. The feds note that the act prohibits any use of a Schedule I substance, and regulates the use of substances found on Schedules II, III, IV and V to "legitimate medical purposes."

However, as the feds note in their brief, neither the CSA nor the DEA's rules defined "legitimate medical purpose." Instead, the feds rely on the fact that the other 49 states and the AMA disavow the practice of physician-assisted suicide (which Oregon claims to be a misnomer because the doctor doesn't actually assist in the suicide) to conclude that Oregon's permission of it does not qualify.

I find it somewhat disingenuous to rely on the opinions of the states to argue the federal government may trump those same states' interpretation. If 49 states disapprove, and the federal government may enforce an interpretation of "legitimate medical purpose" that is derived solely from the fact that those 49 states disavow such medical practice, then what would happen if 49 states approved such a practice? Where would the support for the feds' interpretation come from then? I hope somebody on the bench asks this question today. It would seem to me that, if the federal government relies on the state's interpretation of "legitimate medical purpose," then it must concede that the definition of such is up to the states.

A lot of commentators seem to think this case is somehow analytically related to Gonzalez v. Raich, the medical marijuana case recently handed down. However, the question presented there was different. In Raich, the issue was whether the commerce clause permitted Congress to regulate the use of a drug over the objection of a state. Marijuana is a Schedule I drug. Consequently, it may not be prescribed - period, not even for a "legitimate medical purpose." Thus, it was immaterial why marijuana was prescribed - the fact remained that the drug was not subject to prescription for any purpose. Here, the question is whether a drug that is otherwise permitted to be prescribed for a "legitimate medical purpose" may be prescribed to hasten death, and consequently whether such use constitutes a "legitimate medical purpose."

Boiled down to an even duller level, this is a case of the authority of an agency to interpret its own rules. My (rather cursory) review of the briefs indicate that nobody has really brought this issue to the forefront. Frankly, if I were the AG, I would start out with this because I think it's his strongest argument. Congress delegated rulemaking to the AG. Therefore, he can make - and consequently interpret - rules. It is well-settled law that an adopting agency's interpretation of its own rules is subject to considerable deference and will usually be upheld so long as it is reasonable and does not conflict with some other rule or law. And although I disagree with the AG's interpretation, I don't see anywhere in Oregon's argument a persuaive reason why it should not be accorded deference. Considering the opinions of the other states, the AMA, and the Court in Washington v. Glucksberg, it certainly appears reasonable, and obviously doesn't conflict with any other rule or law.

When it's all said and done here, I would not be surprised to read an opinon that avoids all of the more interesting "states' rights" arguments and simply says an agency may interpret its own rules, the AG has the authority to regulate the use of scontrolled substances, and therefore it may interpret the rules regarding the use of controlled substances in a manner it deems consistent with its own rules and that gives the rules the force and effect the agency (and Congress) intended.