gonzales v. oregon and oregon death with dignity act and john ashcroft and attorney general

By a 6-3 majority, the United States Supreme Court decided today that AG John Ashcroft had exceeded his authority under law by issuing a Nov. 9, 2001 Interpretive Rule which would have revoked the licenses of Oregon physicians (and subjected them to criminal penalties) if they prescribed drugs that would be used to end a terminally ill patient's life. The effect of this decision (which I had predicted as a 5-4 or 6-3 Oregon victory in an earlier essay) is to allow the Oregon practice of assisted suicide under the Oregon Death with Dignity Act to continue. Another effect of the decision, however, will be to call down all kinds of Congressional wrath, probably sooner rather than later, leading to efforts to pass legislation making the Oregon practice illegal. The Court's decision only held that the AG had overstepped his authority; it had nothing to do with whether a Congressional enactment forbidding the practice would be upheld. All observers of the Court would agree that if Congress passes such an Act, the Oregon Act is history. Thus, the debate will shift to the political sphere now, and what will be evident for the world to see is to what extent the Oregon Congressional delegation, especially Senators Ron Wyden and Gordon Smith, stand up for the interests of Oregon in the future.

A Word About the Decision

But I should say a word about the decision and the legal reasoning behind it before handing the issue over to the political process. Both the majority opinion of Justice Kennedy and the dissenting opinion of Scalia are odd in that they give only slight glimpses into the fact that this is a highly charged issue in the country, and is an issue which will grow in importance in the ensuing years. If you read the Justices' opinions in the hermetically sealed tube which law sometimes claims to be, you would think that at issue was a rather arcane issue of administrative law. That is, what is the "level of deference" that should be accorded an Interpretive Rule by the head of a governmental agency when he is interpreting a statute or rule which his own agency had promulgated? Should the rule be granted substantial deference or little or no deference? The law has developed to such an extent that these forms of deference are even given names--Chevron deference or Skidmore deference. Throwing around names of cases, however, gives a false air of security to the unwary. One might get the impression that there actually are administrative law cases that answer our questions with certainty. Nothing could be further from the truth. Administrative law and proper "deference" to agency rule-making authority is a murky world of contradictory principles--as this case shows.

To get to the bottom line of this unsatisfactory mode of argument, however, I will only say that the Court majority held that AG Ashcroft's authority was rather narrowly circumscribed under the Controlled Substances Act (and its enabling regulations), and that therefore his Interpretive Rule was not to be given substantial deference. The dissenters would, predictably, have it differently.

The Real Issue Behind the Case

Though one could go round and round on "angel on the head of a pin" issues of administrative law interpretation, I think that what really irked the majority in this case is what I indicated in a previous essay--that the AG had simply arrogated power to himself in a way that undercut a hugely important national debate. In one passage, which seems to me to be determinative for the majority, they get to this issue:

"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 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."

In other words, this is an important issue, and to imagine that Congress had delegated power to one appointed person to end the national debate on an issue under the guise of "deference to agency rule-making" is too much for the majority to stomach.

Conclusion

Issues of religious affiliation of public officials have been deemphasized in the last 20 years. We all want to be "tolerant" or even supportive of a person's religious perspective. But issues of religion will rise again, especially in relation to other "life and death" issues. I will write more about this elsewhere, but suffice it to say that with a Supreme Court that, for the first time has a majority of Catholic Justices (assuming that Judge Alito will shortly be confirmed), one might have some discussion regarding how religious views are brought into the judicial process.

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