Deference Principles and Statutory Interpretation (Physician Assisted Suicide)

Gonzales v. Oregon

This was one of those extremely long, rather piecemeal, decisions. The arguments made by the dissent help, in places, to illuminate the arguments made by the majority, though neither is, on balance, particularly persuasive.

The Oregon Death With Dignity Act (ODWDA) legalized assisted suicide in accordance with specific (suffice it to say, extensive) safeguards, by which physicians could prescribe legal doses of drugs which are regulated by the federal Controlled Substances Act (CSA). Senators Orrin Hatch and Rep. Henry Hyde invited the DEA to prosecute those doctors. Janet Reno denied the authority to do so, and a measure to grant that authority failed in 1998. This case regards the validity of an interpretive rule issued by the Attorney General Gonzales in 2001 stating that this practice does not conform to a 1971 regulation by the Attorney General requiring that drugs listed in “Schedule II” of the CSA be “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice,” and is thus unlawful.

To qualify to prescribe these drugs, doctors must be certified by the Attorney General, who may “deny, suspend, or revoke” their registration if that registration would be “inconsistent with the public interest.” This requires that the Attorney General “shall” consider (1) the recommendation of the State licensing board (2) the applicant’s experience with dispensing or conducting research with respect to controlled substances (3) the applicant’s conviction record … relating to controlled substances (4) “compliance with applicable State, Federal, or local laws relating to controlled substances” and (5) “such other conduct which may threaten the public health and safety.

The majority suggests that deference to a rule is appropriate when it interprets the agency’s own ambiguous regulation, or if Congress delegated authority to the agency to “make rules carrying the force of law and that the agency interpretation claiming deference was promulgated in the exercise of that authority” (Auer). However, the majority argues, the Regulation simply restated the terms of the statute. Thus, any interpretation of this term should not be considered internal, and “does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute.” Additionally, the regulation was enacted before the amendment in 1984 giving the Attorney General the power to (de)/register physicians, and thus the interpretation “runs counter to the ‘intent at the time of the regulation’s promulgation.’”

Another case (Chevron) suggesting deference “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority” is distinguished because even while the statute’s “legitimate medical use” provision is ambiguous, here the Attorney General is given only “limited” interpretive powers. “The Attorney General is authorized to promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions [of promulgation of rules and regulations, of charging fees relating to registration, and of control of manufacture, distribution, and dispensation of controlled substances].” This is interpreted as power to promulgate rules relating to (1) registration, (2) control, and (3) efficient execution of his duties.

The Court then argues that “control” does not encompass the definition of medical standards because it is limited, by statute, to control over the schedule of substances. The 5 step “registration” portion is not exemplified in the rule, which rather interprets the substantive provisions of the statute. The Government argues that the “public interest provision” grants the power to interpret the statute, which the Court considers to be too expansive to justify, especially considering the power sharing that the Attorney General must engage in with the Secretary as demonstrated by the CSA and post-enactment commentary. In fact the Court presumes that Congress delegated interpretive authority to the “administrative actor in the best position to [do so]” noting that it is the secretary, not the Attorney General, who has medical expertise, and goes on to argue that the definition of “legitimate medical purpose” is necessarily a medical, not legal, decision. The Court also looks to examples where Congress was considerably more explicit than the Attorney General would require to illustrate that Congress never intended to delegate so much power to one executive officer. There is effectively no discussion of federalism other than a recognition that police power and protective power is traditionally the purview of the states.

Scalia, for the dissent, argues (1) the Attorney General’s interpretation of “legitimate medical purpose” is entitled to deference per Auer, (2) this interpretation is by far the most natural interpretation of the Regulation—whose validity is not challenged and is thus correct even upon de novo review, (3) the Attorney General is explicitly given the authority to interpret “public interest’ and thereby implicitly given the authority to interpret “public health and safety,” both interpretations of which are entitled to deference (presumably per Auer).

(1) Because the Directive interpreted an internal regulation, it is entitled to deference under Auer, and resists the suggestion that the Regulation parroted the statute, showing that it interpreted the word “prescription.” In this argument the dissent is even more strained than the majority. (2) Because the definition of the word to which the majority appeals comes from a different section it should be disregarded for an “ordinary meaning.” In the relevant part of the statue, the dissent argues, “control” must take [a substance] as its direct object, whereas the definitional term takes [a process].

The dissent goes on to assert that interpreting “legitimate medical purpose” (in terms of the Attorney General’s power to interpret ‘perscription’) not to include physician assisted suicide is eminently reasonable. Against arguments that the CSA is primarily concerned with recreational drug abuse, the majority argues that “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed ” (Oncale).

(3) The dissent also impugns the argument that Congress chooses to be more explicit, and cites the majority’s example as doing no more than including steroids in the CSA (rather than separately regulating them). Additionally, the dissent argues, that the requirement for more explicit delegation predates Chevron. According to the dissent, the various interpretive powers specifically delegated to the Attorney General were sufficient for him to interpret. Delegation to the Secretary was indirect at best, the Attorney General should not have been expected to undertake the five-factor test outside of actual proceedings, and the authority to interpret “public health” and “public interest” is sufficiently broad so as to delegate the authority contested here.

Justice Thomas essentially argues that “In stark contrast to Raich’s broad conclusions about the scope of the CSA as it pertains to the medicinal use of controlled substances, today this Court concludes that the CSA is merely concerned with fighting ‘drug abuse’ and only insofar as that abuse leads to ‘addiction or abnormal effects on the nervous system.”