Administration Law - Ninth Circuit Holds That Attorney General's Directive Criminalizing Physician-Assisted Suicide Exceeded Authority under Federal Controlled Substances Act

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ADMINISTRATIVE LAW--NINTH CIRCUIT HOLDS THAT ATTORNEY GENERAL'S DIRECTIVE CRIMINALIZING PHYSICIAN-ASSISTED SUICIDE EXCEEDED AUTHORITY UNDER FEDERAL CONTROLLED SUBSTANCES ACT.--Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004).

George Bernard Shaw once wrote, "Dying is a troublesome business." (1) Indeed, in recent years the business of dying has become more legally troublesome, as legislators confront a modern medical landscape where the choice to extend life or hasten a painless death is increasingly feasible, spurring a national debate on the so-called "right to die." (2) The Supreme Court has occasionally entered this debate in cases addressing state prohibitions on physician-assisted suicide or state regulation of life-sustaining medical treatment. (4) Oregon has taken this controversial issue to the next level by legally authorizing physician-assisted suicide for the terminally ill. (5) Recently, in Oregon v. Ashcroft, (6) the Ninth Circuit held that Attorney General John Ashcroft acted outside his authority under the federal Controlled Substances Act (7) (CSA) when, in response to Oregon's law, he issued a directive criminalizing physician-assisted suicide. (8) The court reached the correct result, but in doing so it failed to state and justify an important premise underlying its conclusion. The majority's argument relied in part on the determination that the Ashcroft Directive raised federalism concerns and thus needed to be supported by a "clear statement" of Congress's intent to authorize such regulation. This argument, in turn, rested on the assumption that a federalism-inspired "clear statement rule" overrides judicial deference to agencies. Although the court failed to defend this assumption, there are in fact strong normative reasons for such a judicial preference.

Congress enacted the CSA as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. (9) Under the CSA, physicians who prescribe controlled substances must register with the Attorney General, (10) who may deny or revoke the registration if its issuance "would be inconsistent with the public interest." (11) The implementing regulations to the CSA provide that a prescription for a controlled substance may only be issued "for a legitimate medical purpose" and in the "usual course" of professional practice; persons violating these requirements "shall be subject to the penalties provided for violations of the [CSA]." (12) In 1994, Oregon enacted the Oregon Death with Dignity Act. (13) This law allows a physician to prescribe to a mentally competent, terminally ill patient, after various precautionary procedures, (14) medication--including controlled substances covered by the CSA--that will enable the patient to "end[] his or her life in a humane and dignified manner." (15) In November 2001, Attorney General John Ashcroft promulgated the "Ashcroft Directive," which announced that physician-assisted suicide does not serve a "legitimate medical purpose" and that practicing it "may 'render [a practitioner's] registration ... inconsistent with the public interest.'" (16)

The State of Oregon responded by filing a complaint in federal district court requesting permanent declaratory and injunctive relief and asking the court temporarily to enjoin the defendants (Ashcroft and other federal officials) from giving legal effect to Ashcroft's directive. (17) The district court granted a permanent injunction, (18) but the Ninth Circuit subsequently determined that it had original jurisdiction and heard the case as a transfer from the district court. (19) Writing for the majority, Judge Tallman (20) reasoned that since the Ashcroft Directive effectively criminalizes physician practices authorized by Oregon law, it "interferes with Oregon's authority to regulate medical care within its borders." (21) Regulation of medical care is "an area of law traditionally reserved for state authority," (22) and thus federal interference in this area raises federalism concerns. …