The Supreme Court's recent decision in Gonzales v. Oregon, like its decision last year in Gonzales v. Raich (the "medical marijuana" case), again raises questions about the bioethical consequences of the Controlled Substances Act. When, in 1970, Congress passed that act, it placed problematic drugs in one of five "schedules," and it authorized the U.S. attorney general to add or subtract drugs from the schedules. Drugs in schedule II have both a medical use and a high potential for abuse. Doctors may prescribe such drugs if they "obtain from the Attorney General a registration issued in accordance with the rules and regulations promulgated by him." The attorney general may deny or revoke a doctor's registration if registration would be "inconsistent with the public interest." In evaluating "the public interest," the attorney general considers, among other things, "conduct which may threaten the public health and safety." In 1971 the attorney general issued a regulation requiring that prescriptions for controlled substances "be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice."
So far, so good; this is all common ground. The issues Gonzales v. Oregon presents had their origins in 2001, when Attorney General Ashcroft promulgated an "Interpretive Rule" which "determine[ d] that assisting suicide is not a 'legitimate medical purpose' within the meaning of 21 CFR Sec. 1306.4 (2001), and that prescribing, dispensing, or administering federally controlled substances violates the CSA. Such conduct by a physician . . . may 'render his registration . . . inconsistent with the public interest.'"
The Interpretive Rule did not preempt Oregon's legalization of assisted suicide, but it did impede assisted suicide, since controlled substances are the standard means of assistance. Oregon therefore asked the federal courts to keep the attorney general from enforcing his rule. The case eventually reached the Supreme Court. What was the Court's task?
A common public expectation was that the Supreme Court would—finally—decide whether assisted suicide is good policy. That, however, is not the Court's job. There are some areas of law in which some courts are supposed to consider and decide what public policy should be. These are the areas in which state courts have inherited the "common law" authority of English courts, areas like the law of property, of contracts, and of torts (civil wrongs). In those areas, English courts made law before Parliament had become an effective legislature. That authority persisted even when Parliament came into its own, and that authority was inherited by American state courts. In common law areas, courts principally apply precedent, but when necessary they are expected to think in policy terms. Even in those areas, of course, judicial decisions can be overridden by the legislature.
The federal courts, however, have (basically) not inherited the common law power to make public policy. For our purposes, the federal courts have only two tasks—to interpret the Constitution and to interpret federal statutes.
So, was the Court's assignment in this case to decide whether the Interpretive Rule exceeded the federal government's constitutional authority? It could have been. The federal government's power is not plenary; it has only the authority the Constitution accords it. Oregon claimed that the attorney general's interpretation of the CSA exceeded constitutional bounds and trenched too far on the authority of the states.
Nevertheless, Gonzales v. Oregon was—basically, essentially, apparently—not decided on constitutional grounds. Why? What did the Court think its task was? "The question before us," Justice Kennedy wrote for the majority, "is whether the Controlled Substances Act allows the United States Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide, notwithstanding a state law permitting the procedure." The Court was saying that the attorney general's authority is not coterminous with the federal government's authority. He has only the powers he is statutorily accorded. He thought the CSA gave him the authority to issue his rule. Oregon disagreed.
If the issue was the meaning of the CSA, did the Court just consult the statute's language? No. Administrative agencies of the federal government regularly interpret the statutes from which...