546 U. S. ____ (2006)
546 U. S. ____ (2006)
546 U. S. ____ (2006)
SUPREME COURT OF THE UNITED STATES
NO. 04-623
ALBERTO R. GONZALES, ATTORNEY GENERAL, et al.,
PETITIONERS
v. OREGON et al.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[January 17, 2006]
Justice Scalia, with whom Chief
Justice Roberts and Justice Thomas join, dissenting.
The Court concludes that the
Attorney General lacked authority to declare assisted suicide
illicit under the Controlled Substances Act (CSA), because the CSA
is concerned only with “
illicit drug dealing and
trafficking,”
ante, at 23 (emphasis added). This
question-begging conclusion is obscured by a flurry of arguments
that distort the statute and disregard settled principles of our
interpretive jurisprudence.
Contrary to the Court’s analysis, this case
involves not one but
three independently sufficient
grounds for reversing the Ninth Circuit’s judgment. First, the
Attorney General’s interpretation of “legitimate medical purpose”
in 21 CFR §1306.04 (2005) (hereinafter Regulation) is clearly
valid, given the substantial deference we must accord it under
Auer v.
Robbins,
519 U. S. 452, 461
(1997), and his two remaining conclusions follow naturally from
this interpretation. See Part I,
infra. Second, even if
this interpretation of the Regulation is entitled to lesser
deference or no deference at all, it is by far the most natural
interpretation of the Regulation—whose validity is not challenged
here. This interpretation is thus correct even upon
de
novo review. See Part II,
infra. Third, even if that
interpretation of the Regulation were incorrect, the Attorney
General’s independent interpretation of the
statutory
phrase “public interest” in 21 U. S. C. §§824(a) and 823(f),
and his implicit interpretation of the statutory phrase “public
health and safety” in §823(f)(5), are entitled to deference under
Chevron U. S. A. Inc. v.
Natural Resources
Defense Council, Inc.,
467 U. S. 837 (1984), and they are
valid under
Chevron. See Part III,
infra. For
these reasons, I respectfully dissent.
I
The Interpretive Rule issued by
the Attorney General (hereinafter Directive) provides in relevant
part as follows:
“For the reasons set forth in the OLC Opinion, I
hereby determine that assisting suicide is not a ‘legitimate
medical purpose’ within the meaning of 21 CFR §1306.04 (2001), and
that prescribing, dispensing, or administering federally controlled
substances to assist suicide violates the CSA. Such conduct by a
physician registered to dispense controlled substances may ‘render
his registration … inconsistent with the public interest’ and
therefore subject to possible suspension or revocation under 21 U.
S. C. [§]824(a)(4).” 66 Fed. Reg. 56608 (2001).
The Directive thus purports to do three distinct
things: (1) to interpret the phrase “legitimate medical purpose” in
the Regulation to exclude physician-assisted suicide; (2) to
determine that prescribing, dispensing, and administering federally
controlled substances to assist suicide violates the CSA; and (3)
to determine that participating in physician-assisted suicide may
render a practitioner’s registration “inconsistent with the public
interest” within the meaning of 21 U. S. C. §§823(f) and
824(a)(4) (which incorporates §823(f) by reference). The Court’s
analysis suffers from an unremitting failure to distinguish among
these distinct propositions in the Directive.
As an initial matter, the validity of the
Regulation’s interpretation of “prescription” in §829 to require a
“legitimate medical purpose” is not at issue. Respondents conceded
the validity of this interpretation in the lower court, see
Oregon v.
Ashcroft, 368 F. 3d 1118, 1133
(CA9 2004), and they have not challenged it here. By its assertion
that the Regulation merely restates the statutory standard of 21 U.
S. C. §830(b)(3)(A)(ii), see
ante, at 10, the Court
likewise accepts that the “legitimate medical purpose”
interpretation for prescriptions is proper. See also
ante,
at 11 (referring to “legitimate medical purpose” as a “statutory
phrase”). It is beyond dispute, then, that a “prescription” under
§829 must issue for a “legitimate medical purpose.”
A
Because the Regulation was
promulgated by the Attorney General, and because the Directive
purported to interpret the language of the Regulation, see 66 Fed.
Reg. 56608, this case calls for the straightforward application of
our rule that an agency’s interpretation of its own regulations is
“controlling unless plainly erroneous or inconsistent with the
regulation.”
Auer,
supra, at 461 (internal
quotation marks omitted). The Court reasons that
Auer is
inapplicable because the Regulation “does little more than restate
the terms of the statute itself.”
Ante, at 9. “Simply
put,” the Court asserts, “the existence of a parroting regulation
does not change the fact that the question here is not the meaning
of the regulation but the meaning of the statute.”
Ante,
at 10.
To begin with, it is doubtful
that any such exception to the
Auer rule exists. The Court
cites no authority for it, because there is none. To the contrary,
our unanimous decision in
Auer makes clear that broadly
drawn regulations are entitled to no less respect than narrow ones.
“A rule requiring the Secretary to construe his own regulations
narrowly would make little sense,
since he is free to write the
regulations as broadly as he wishes, subject only to the limits
imposed by the statute.” 519 U. S., at 463 (emphasis
added).
Even if there were an antiparroting canon,
however, it would have no application here. The Court’s description
of 21 CFR §1306.04 (2005) as a regulation that merely
“paraphrase[s] the statutory language,”
ante, at 10, is
demonstrably false. In relevant part, the Regulation interprets the
word “prescription” as it appears in 21 U. S. C. §829, which
governs the dispensation of controlled substances other than those
on Schedule I (which may not be dispensed at all). Entitled
“[p]rescriptions,” §829 requires, with certain exceptions not
relevant here, “the written prescription of a practitioner”
(usually a medical doctor) for the dispensation of Schedule II
substances (§829(a)), “a written or oral prescription” for
substances on Schedules III and IV (§829(b)), and no prescription
but merely a “medical purpose” for the dispensation of Schedule V
substances (§829(c)).
As used in this section, “prescription” is
susceptible of at least three reasonable interpretations. First, it
might mean any oral or written direction of a practitioner for the
dispensation of drugs. See
United States v.
Moore,
423
U. S. 122, 137, n. 13 (1975) (“On its face §829 addresses
only the form that a prescription must take… . [Section] 829
by its terms does not limit the authority of a practitioner”).
Second, in light of the requirement of a “medical purpose” for the
dispensation of Schedule V substances, see §829(c), it might mean a
practitioner’s oral or written direction for the dispensation of
drugs that the practitioner believes to be for a legitimate medical
purpose. See Webster’s New International Dictionary 1954 (2d ed.
1950) (hereinafter Webster’s Second) (defining “prescription” as
“[a] written direction for the preparation and use of a
medicine”);
id., at 1527 (defining “medicine” as
“[a]ny substance or preparation used in
treating disease”)
(emphases added). Finally, “prescription” might refer to a
practitioner’s direction for the dispensation of drugs that serves
an
objectively legitimate medical purpose, regardless of
the practitioner’s
subjective judgment about the
legitimacy of the anticipated use. See
ibid.
The Regulation at issue constricts or
clarifies the statute by adopting the last and narrowest of these
three possible interpretations of the undefined statutory term: “A
prescription for a controlled substance to be effective must be
issued for a legitimate medical purpose … .” 21 CFR
§1306.04(a) (2005). We have previously
acknowledged that
the Regulation gives added content to the text of the statute: “The
medical purpose requirement explicit in subsection (c) [of §829]
could be implicit in subsections (a) and (b). Regulation §[1]306.04
makes it explicit.”
Moore,
supra, at 137,
n. 13.[
Footnote 1]
The Court points out that the Regulation
adopts some of the phrasing employed in unrelated sections of the
statute. See
ante, at 10. This is irrelevant. A regulation
that significantly clarifies the meaning of an otherwise ambiguous
statutory provision is not a “parroting” regulation,
regardless of the sources that the agency draws upon for
the clarification. Moreover, most of the statutory phrases that the
Court cites as appearing in the Regulation, see
ibid.
(citing 21 U. S. C. §§812(b) (“ ‘currently accepted
medical use’ ”), 829(c) (“ ‘medical purpose’ ”),
802(21) (“ ‘in the course of professional practice’ ”)),
are inapposite because they do
not “parrot” the
only phrase in the Regulation that the Directive purported
to construe. See 66 Fed. Reg. 56608 (“I hereby determine that
assisting suicide is not a ‘legitimate medical purpose’ within the
meaning of 21 CFR §1306.04 …”). None of them includes the key
word “legitimate,” which gives the most direct support to the
Directive’s theory that §829(c) presupposes a uniform federal
standard of medical practice.[
Footnote 2]
Since the Regulation does not run afowl (so to
speak) of the Court’s newly invented prohibition of “parroting”;
and since the Directive represents the agency’s own interpretation
of that concededly valid regulation; the only question remaining is
whether that interpretation is “plainly erroneous or inconsistent
with the regulation”; otherwise, it is “controlling.”
Auer,
supra, at 461 (internal quotation marks
omitted). This is not a difficult question. The Directive is
assuredly valid insofar as it interprets “prescription” to require
a medical purpose that is “legitimate” as a matter of
federal law—since that is an interpretation of
“prescription” that we ourselves have adopted.
Webb v.
United States,
249 U. S. 96 (1919), was
a prosecution under the Harrison Act of a doctor who wrote
prescriptions of morphine “for the purpose of providing the user
with morphine sufficient to keep him comfortable by maintaining his
customary use,”
id., at 99. The dispositive issue in the
case was whether such authorizations were “prescriptions” within
the meaning of §2(b) of the Harrison Act, predecessor to the CSA.
Ibid. We held that “to call such an order for the use of
morphine a physician’s prescription would be so plain a perversion
of meaning that no discussion of the subject is required.”
Id., at 99–100. Like the Directive, this interprets
“prescription” to require medical purpose that is legitimate as a
matter of federal law. And the Directive is also assuredly valid
insofar as it interprets “legitimate medical purpose” as a matter
of federal law to exclude physician-assisted suicide, because that
is not only a permissible but indeed the most natural
interpretation of that phrase. See Part II,
infra.
B
Even if the Regulation merely
parroted the statute, and the Directive therefore had to be treated
as though it construed the statute directly, see ante, at 11,
the Directive would still be entitled to deference under
Chevron. The Court does not take issue with the Solicitor
General’s contention that no alleged procedural defect, such as the
absence of notice-and-comment rulemaking before promulgation of the
Directive, renders
Chevron inapplicable here. See Reply
Brief for Petitioners 4 (citing
Barnhart v.
Walton,
535
U. S. 212, 219–222 (2002); 5 U. S. C. §553(b)(3)(A)
(exempting interpretive rules from notice-and-comment rulemaking)).
Instead, the Court holds that the Attorney General lacks
interpretive authority to issue the Directive at all, on the ground
that the explicit delegation provision, 21 U. S. C. A.
§821 (Supp. 2005), limits his rulemaking authority to “registration
and control,” which (according to the Court) are not implicated by
the Directive’s interpretation of the prescription requirement. See
ante, at 12–14.
Setting aside the implicit
delegation inherent in Congress’s use of the undefined term
“prescription” in §829, the Court’s reading of “control” in §821 is
manifestly erroneous. The Court urges,
ante, at 12–13,
that “control” is a term defined in part A of the subchapter
(entitled “Introductory Provisions”) to mean “to add a drug or
other substance … to a schedule
under part B of this
subchapter,” 21 U. S. C. §802(5) (emphasis added). But
§821 is not included in “part B of this subchapter,” which is
entitled “Authority to Control; Standards and Schedules,” and
consists of the sections related to
scheduling, 21 U.
S. C. A. §§811–814 (main ed. and Supp. 2005), where the
statutory definition is uniquely appropriate. Rather, §821 is found
in
part C of the subchapter, §§821–830, entitled
“Registration of Manufacturers, Distributors, and Dispensers of
Controlled Substances,” which includes all and only the provisions
relating to the “manufacture, distribution, and dispensing of
controlled substances,” §821. The artificial definition of
“control” in §802(5) has no conceivable application to the use of
that word in §821. Under that definition, “control” must take a
substance as its direct object, see 21 U. S. C.
§802(5) (“to add a drug or other substance … to a schedule”)—and
that is how “control” is consistently used throughout
part
B. See,
e.g., §§811(b) (“proceedings … to
control a drug or other substance”), 811(c) (“each drug or
other substance proposed to be
controlled or removed from
the schedules”), 811(d)(1) (“If
control is required … the
Attorney General shall issue an order
controlling such
drug …”), 812(b) (“Except where
control is required … a
drug or other substance may not be placed in any schedule …”). In
§821, by contrast, the term “control” has as its object, not “a
drug or other substance,” but rather the
processes of
“manufacture, distribution, and dispensing of controlled
substances.” It could not be clearer that the artificial definition
of “control” in §802(5) is inapplicable. It makes no sense to speak
of “adding the manufacturing, distribution, and dispensing of
substances to a schedule.” We do not force term-of-art definitions
into contexts where they plainly do not fit and produce nonsense.
What is obviously intended in §821 is the ordinary meaning of
“control”—namely, “[t]o exercise restraining or directing influence
over; to dominate; regulate; hence, to hold from action; to curb,”
Webster’s Second 580. “Control” is regularly used in this ordinary
sense elsewhere in
part C of the subchapter. See,
e.g., 21 U. S. C. §§823(a)(1), (b)(1), (d)(1),
(e)(1), (h)(1) (“maintenance of effective
controls against
diversion”); §§823(a)(5), (d)(5) (“establishment of effective
control against diversion”); §823(g)(2)(H)(i) (“to
exercise supervision or
control over the practice of
medicine”); §830(b)(1)(C) (“a listed chemical under the
control of the regulated person”); §830(c)(2)(D)
(“chemical
control laws”) (emphases added).
When the word is given its ordinary meaning,
the Attorney General’s interpretation of the prescription
requirement of §829 plainly “relat[es] to the …
control of
the … dispensing of controlled substances,” 21 U.
S. C. A. §821 (Supp. 2005) (emphasis added), since a
prescription is the chief requirement for “dispensing” such drugs,
see §829. The same meaning is compelled by the fact that §821 is
the first section not of part B of the subchapter, which deals
entirely with “control” in the artificial sense, but of part C,
every section of which relates to the “registration and control of
the manufacture, distribution, and dispensing of controlled
substances,” §821. See §§822 (persons required to register), 823
(registration requirements), 824 (denial, revocation, or suspension
of registration), 825 (labeling and packaging), 826 (production
quotas for controlled substances), 827 (recordkeeping and reporting
requirements of registrants), 828 (order forms), 829 (prescription
requirements), 830 (regulation of listed chemicals and certain
machines). It would be peculiar for the first section of this part
to authorize rulemaking for matters covered by the
previous part. The only sensible interpretation of §821 is
that it gives the Attorney General interpretive authority over the
provisions of part C, all of which “relat[e] to the registration
and control of the manufacture, distribution, and dispensing of
controlled substances.” These provisions include
both the
prescription requirement of §829, and the criteria for registration
and deregistration of §§823 and 824 (as relevant below, see Part
III,
infra).[
Footnote
3]
C
In sum, the Directive’s
construction of “legitimate medical purpose” is a perfectly valid
agency interpretation of its own regulation; and if not that, a
perfectly valid agency interpretation of the statute. No one
contends that the construction is “plainly erroneous or
inconsistent with the regulation,”
Bowles v.
Seminole
Rock & Sand Co.,
325 U. S. 410, 414
(1945), or beyond the scope of ambiguity in the statute, see
Chevron, 467 U. S., at 843. In fact, as explained below,
the Directive provides
the most natural interpretation of
the Regulation and of the statute. The Directive thus definitively
establishes that a doctor’s order authorizing the dispensation of a
Schedule II substance for the purpose of assisting a suicide is not
a “prescription” within the meaning of §829.
Once this conclusion is
established, the other two conclusions in the Directive follow
inevitably. Under our reasoning in
Moore, writing
prescriptions that are illegitimate under §829 is certainly not “in
the [usual] course of professional practice” under §802(21) and
thus not “authorized by this subchapter” under §841(a). See 423 U.
S., at 138, 140–141. A doctor who does this may thus be prosecuted
under §841(a), and so it follows that such conduct “violates the
Controlled Substances Act,” 66 Fed. Reg. 56608. And since such
conduct is thus not in “[c]ompliance with applicable … Federal …
laws relating to controlled substances,” 21 U. S. C.
§823(f)(4), and may also be fairly judged to “threaten the public
health and safety,” §823(f)(5), it follows that “[s]uch conduct by
a physician registered to dispense controlled substances
may ‘render his registration … inconsistent with the
public interest’ and therefore subject to
possible
suspension or revocation under 21 U. S. C. [§]824(a)(4).” 66
Fed. Reg. 56608 (emphases added).
II
Even if the Directive were
entitled to no deference whatever, the most reasonable
interpretation of the Regulation and of the statute would produce
the same result. Virtually every relevant source of authoritative
meaning confirms that the phrase “legitimate medical
purpose”[
Footnote 4] does not
include intentionally assisting suicide. “Medicine” refers to
“[t]he science and art dealing with the prevention, cure, or
alleviation of disease.” Webster’s Second 1527. The use of the word
“legitimate” connotes an
objective standard of “medicine,”
and our presumption that the CSA creates a uniform federal law
regulating the dispensation of controlled substances, see
Mississippi Band of Choctaw Indians v.
Holyfield,
490 U. S. 30, 43 (1989), means that
this objective standard must be a federal one. As recounted in
detail in the memorandum for the Attorney General that is attached
as an appendix to the Directive (OLC Memo), virtually every medical
authority from Hippocrates to the current American Medical
Association (AMA) confirms that assisting suicide has seldom or
never been viewed as a form of “prevention, cure, or alleviation of
disease,” and (even more so) that assisting suicide is not a
“legitimate” branch of that “science and art.” See OLC Memo, App.
to Pet. for Cert. 113a–130a. Indeed, the AMA has determined that
“ ‘[p]hysician-assisted suicide is fundamentally incompatible
with the physician’s role as a healer.’ ”
Washington
v.
Glucksberg,
521 U. S. 702, 731
(1997). “[T]he overwhelming weight of authority in judicial
decisions, the past and present policies of nearly all of the
States and of the Federal Government, and the clear, firm and
unequivocal views of the leading associations within the American
medical and nursing professions, establish that assisting in
suicide … is not a legitimate medical purpose.” OLC Memo,
supra, at 129a. See also
Glucksberg,
supra, at 710, n. 8 (prohibitions or condemnations of
assisted suicide in 50 jurisdictions, including 47 States, the
District of Columbia, and 2 Territories).
In the face of this “overwhelming
weight of authority,” the Court’s admission that “[o]n its own,
this understanding of medicine’s boundaries is
at least
reasonable,”
ante, at 26 (emphasis added), tests the
limits of understatement. The only explanation for such a
distortion is that the Court confuses the
normative
inquiry of what the boundaries of medicine
should be—which
it is laudably hesitant to undertake—with the
objective
inquiry of what the accepted definition of “medicine”
is.
The same confusion is reflected in the Court’s remarkable statement
that “[t]he primary problem with the Government’s argument … is its
assumption that the CSA impliedly authorizes an Executive officer
to bar a use simply because it may be inconsistent with
one
reasonable understanding of medical practice.”
Ibid.
(emphasis added). The fact that many in Oregon believe that the
boundaries of “legitimate medicine”
should be extended to
include assisted suicide does not change the fact that the
overwhelming weight of authority (including the 47 States that
condemn physician-assisted suicide) confirms that they have not yet
been so extended. Not even those of our Eighth Amendment cases most
generous in discerning an “evolution” of national standards would
have found, on this record, that the concept of “legitimate
medicine” has evolved so far. See
Roper v.
Simmons,
543 U. S. 551, 564–567
(2005).
The Court contends that the phrase “legitimate
medical purpose”
cannot be read to establish a broad,
uniform federal standard for the medically proper use of controlled
substances.
Ante, at 22. But it also rejects the most
plausible alternative proposition, urged by the State, that any use
authorized under state law constitutes a “legitimate medical
purpose.” (The Court is perhaps leery of embracing this position
because the State candidly admitted at oral argument that, on its
view, a State could exempt from the CSA’s coverage the use of
morphine to achieve euphoria.) Instead, the Court reverse-engineers
an approach somewhere between a uniform national standard and a
state-by-state approach, holding (with no basis in the CSA’s text)
that “legitimate medical purpose” refers to
all uses of
drugs unrelated to “addiction and recreational abuse.”
Ante, at 27. Thus, though the Court pays lipservice to
state autonomy, see
ante, 23–24, its standard for
“legitimate medical purpose” is in fact a hazily defined
federal standard based on its purposive reading of the
CSA, and extracted from obliquely relevant sections of the Act. In
particular, relying on its observation that the criteria for
scheduling controlled substances are primarily concerned with
“addiction or abnormal effects on the nervous system,”
ante, at 26–27 (citing 21 U. S. C. §§811(c)(7),
812(b), 811(f), 801a), the Court concludes that the CSA’s
prescription requirement must be interpreted in light of this
narrow view of the statute’s purpose.
Even assuming, however, that the
principal concern of the CSA is the curtailment of
“addiction and recreational abuse,” there is no reason to think
that this is its
exclusive concern. We have repeatedly
observed that Congress often passes statutes that sweep more
broadly than the main problem they were designed to address.
“[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 v.
Sundowner Offshore Services, Inc.,
523 U. S. 75, 79 (1998).
See also
H. J. Inc. v.
Northwestern Bell
Telephone Co.,
492 U. S. 229, 248
(1989).
The scheduling provisions of the CSA on which
the Court relies confirm that the CSA’s “design,”
ante, at
23, is not as narrow as the Court asserts. In making scheduling
determinations, the Attorney General must not only consider a
drug’s “psychic or physiological dependence liability” as the Court
points out,
ante, at 26 (citing 21 U. S. C.
§811(c)(7)), but must also consider such broad factors as “[t]he
state of current scientific knowledge regarding the drug or other
substance,” §811(c)(3), and (most notably) “[w]hat, if any, risk
there is to the public health,” §811(c)(6). If the latter factor
were limited to addiction-related health risks, as the Court
supposes, it would be redundant of §811(c)(7). Moreover, in making
registration determinations regarding manufacturers and
distributors, the Attorney General “shall” consider “such
other factors as may be relevant to and consistent with
the public health and safety,” §§823(a)(6), (b)(5), (d)(6), (e)(5)
(emphasis added)—over and above the risk of “diversion” of
controlled substances, §§823(a)(1), (a)(5), (b)(1), (d)(1), (d)(5),
(e)(1). And, most relevant of all, in registering and deregistering
physicians, the Attorney General “may deny an application
for such registration if he determines that the issuance of such
registration would be inconsistent with the public interest,”
§823(f); see also §824(a)(4), and in making that determination
“shall” consider “[s]uch other conduct which may threaten the
public health and safety,” §823(f)(5).
All of these
provisions, not just those selectively cited by the Court, shed
light upon the CSA’s repeated references to the undefined term
“abuse.” See §§811(a)(1)(A), (c)(1), (c)(4), (c)(5);
§§812(b)(1)(A), (b)(2)(A), (b)(3)(A), (b)(4)(A), (b)(5)(A).
By disregarding all these public-interest,
public-health, and public-safety objectives, and limiting the CSA
to “addiction and recreational abuse,” the Court rules out the
prohibition of anabolic-steroid use for bodybuilding purposes. It
seeks to avoid this consequence by invoking the Anabolic Steroids
Control Act of 1990, 104 Stat. 4851.
Ante, at 27. But the
only effect of that legislation is to make anabolic steroids
controlled drugs under Schedule III of the CSA. If the only
basis for control is (as the Court says) “addiction and
recreational abuse,” dispensation of these drugs for bodybuilding
could not be proscribed.
Although, as I have described, the Court’s
opinion no more defers to state law than does the Directive, the
Court relies on two provisions for the conclusion that “[t]he
structure and operation of the CSA presume and rely upon a
functioning medical profession regulated under the States’ police
powers,”
ante, at 23—namely the registration provisions of
§823(f) and the nonpre-emption provision of §903. Reliance on the
former is particularly unfortunate, because the Court’s own
analysis recounts how Congress amended §823(f) in 1984 in order to
liberate the Attorney General’s power over registration
from the control of state regulators. See
ante, at 14; 21
U. S. C. §823(f); see also Brief for Petitioners 34–35. And
the nonpre-emption clause is embarrassingly inapplicable, since it
merely disclaims field pre-emption, and affirmatively
prescribes federal pre-emption whenever state law creates
a conflict.[
Footnote 5] In any
event, the Directive does not purport to pre-empt state law in any
way, not even by conflict pre-emption—unless the Court is under the
misimpression that some States
require assisted suicide.
The Directive merely interprets the CSA to prohibit, like countless
other federal criminal provisions, conduct that happens not to be
forbidden under state law (or at least the law of the State of
Oregon).
With regard to the CSA’s registration
provisions, 21 U. S. C. §§823(f), 824(a), the Court argues
that the statute cannot fairly be read to “ ‘hide elephants in
mouseholes’ ” by delegating to the Attorney General the power
to determine the legitimacy of medical practices in “ ‘vague
terms or ancillary provisions.’ ”
Ante, at 20
(quoting
Whitman v.
American Trucking Assns.,
Inc.,
531 U. S.
457, 468 (2001)). This case bears not the remotest resemblance
to
Whitman, which held that “Congress … does not alter
the fundamental details of a regulatory scheme in vague
terms or ancillary provisions.”
Ibid. (emphasis added).
The Attorney General’s power to issue regulations against
questionable uses of controlled substances in no way alters “the
fundamental details” of the CSA. I am aware of only four areas in
which the Department of Justice has exercised that power to
regulate uses of controlled substances
unrelated to
“addiction and recreational abuse” as the Court apparently
understands that phrase: assisted suicide, aggressive pain
management therapy, anabolic-steroid use, and cosmetic weight-loss
therapy. See,
e.g.,
In re Harline, 65 Fed. Reg.
5665, 5667 (2000) (weight loss);
In re Tecca, 62 Fed.
Reg. 12842, 12846 (1997) (anabolic steroids);
In re
Roth, 60 Fed. Reg. 62262, 62263, 62267 (1995) (pain
management). There is no indication that enforcement in these areas
interferes with the prosecution of “drug abuse” as the Court
understands it. Unlike in
Whitman, the Attorney General’s
additional power to address other forms of drug “abuse”
does
absolutely nothing to undermine the central features
of this regulatory scheme. Of course it was critical to our
analysis in
Whitman that the language of the provision did
not bear the meaning that respondents sought to give it. See 531 U.
S., at 465. Here, for the reasons stated above, the provision is
most naturally interpreted to incorporate a uniform federal
standard for legitimacy of medical practice.[
Footnote 6]
Finally, respondents argue that the Attorney
General must defer to state-law judgments about what constitutes
legitimate medicine, on the ground that Congress must speak clearly
to impose such a uniform federal standard upon the States. But no
line of our clear-statement cases is applicable here. The canon of
avoidance does not apply, since the Directive does not push the
outer limits of Congress’s commerce power, compare
Solid Waste
Agency of Northern Cook Cty. v.
Army Corps of
Engineers,
531
U. S. 159, 172 (2001) (regulation of isolated ponds), with
United States v.
Sullivan,
332 U. S. 689, 698
(1948) (regulation of labeling of drugs shipped in interstate
commerce), or impinge on a core aspect of state sovereignty, cf.
Atascadero State Hospital v.
Scanlon,
473 U. S. 234, 242
(1985) (sovereign immunity);
Gregory v.
Ashcroft,
501 U. S. 452,
460 (1991) (qualifications of state government officials). The
clear-statement rule based on the presumption against pre-emption
does not apply because the Directive does not pre-empt any state
law, cf.
id., at 456–457;
Rush Prudential HMO,
Inc. v.
Moran,
536 U. S. 355, 359
(2002). And finally, no clear statement is required on the ground
that the Directive intrudes upon an area traditionally reserved
exclusively to the States, cf.
BFP v.
Resolution Trust
Corporation,
511 U. S. 531, 544
(1994) (state regulation of titles to real property), because the
Federal Government has pervasively regulated the dispensation of
drugs for over 100 years. See generally Brief for Pro-Life Legal
Defense Fund et al. as
Amici Curiae 3–15. It would be
a novel and massive expansion of the clear-statement rule to apply
it in a commerce case
not involving pre-emption or
constitutional avoidance, merely because Congress has chosen
to prohibit conduct that a State has made a contrary policy
judgment to permit. See
Sullivan,
supra, at
693.
III
Even if the Regulation did not
exist and “prescription” in §829 could not be interpreted to
require a “legitimate medical purpose,” the Directive’s conclusion
that “prescribing, dispensing, or administering federally
controlled substances … by a physician … may ‘render his
registration … inconsistent with the public interest’ and therefore
subject to possible suspension or revocation under 21 U. S. C.
[§]824(a)(4),” 66 Fed. Reg. 56608, would nevertheless be
unassailable in this Court.
Sections 823(f) and 824(a)
explicitly grant the Attorney General the authority to register and
deregister physicians, and his discretion in exercising that
authority is spelled out in very broad terms. He may refuse to
register or deregister if he determines that registration is
“inconsistent with the public interest,” 21 U. S. C. §823(f),
after considering five factors, the fifth of which is “[s]uch other
conduct which may threaten the public health and safety,”
§823(f)(5). See also
In re Arora, 60 Fed. Reg. 4447, 4448
(1995) (“It is well established that these factors are to be
considered in the disjunctive, i.e., the Deputy Administrator may
properly rely on any one or a combination of factors, and give each
factor the weight he deems appropriate”). As the Court points out,
these broad standards were enacted in the 1984 amendments for the
specific purpose of
freeing the Attorney General’s
discretion over registration from the decisions of state
authorities. See
ante, at 13.
The fact that assisted-suicide prescriptions
are issued in violation of §829 is of course sufficient to support
the Directive’s conclusion that issuing them may be cause for
deregistration: such prescriptions would violate the fourth factor
of §823(f), namely “[c]ompliance with applicable … Federal … laws
relating to controlled substances,” 21 U. S. C. §823(f)(4).
But the Attorney General did not rely solely on subsection (f)(4)
in reaching his conclusion that registration would be “inconsistent
with the public interest”; nothing in the text of the Directive
indicates that. Subsection (f)(5) (“[s]uch other conduct which may
threaten the public health and safety”) provides an independent,
alternative basis for the Directive’s conclusion regarding
deregistration—provided that the Attorney General has authority to
interpret “public interest” and “public health and safety” in
§823(f) to exclude assisted suicide.
Three considerations make it perfectly clear
that the statute confers authority to interpret these phrases upon
the Attorney General. First, the Attorney General is solely and
explicitly charged with administering the registration and
deregistration provisions. See §§823(f), 824(a). By making the
criteria for such registration and deregistration such obviously
ambiguous factors as “public interest” and “public health and
safety,” Congress implicitly (but clearly) gave the Attorney
General authority to interpret those criteria—
whether or
not there is any explicit delegation provision in the statute.
“Sometimes the legislative delegation to an agency on a particular
question is implicit rather than explicit. In such a case, a court
may not substitute its own construction of a statutory provision
for a reasonable interpretation made by the administrator of an
agency.”
Chevron, 467 U. S., at 844. The Court’s exclusive
focus on the
explicit delegation provisions is, at best, a
fossil of our pre-
Chevron era; at least since
Chevron, we have not conditioned our deferral to agency
interpretations upon the existence of explicit delegation
provisions.
United States v.
Mead Corp., 533 U. S. 218, 229
(2001), left this principle of implicit delegation intact.
Second, even if explicit delegation were
required, Congress provided it in §821, which authorizes the
Attorney General to “promulgate rules and regulations … relating to
the
registration and control of the manufacture,
distribution, and dispensing of controlled
substances … .” (Emphasis added.) Because “dispensing”
refers to the delivery of a controlled substance “pursuant to the
lawful order of, a practitioner,” 21 U. S. C. §802(10), the
deregistration of such practitioners for writing impermissible
orders “relat[es] to the registration … of the … dispensing” of
controlled substances, 21 U. S. C. A. §821 (Supp.
2005).
Third, §821 also gives the Attorney General
authority to promulgate rules and regulations “relating to the …
control of the … dispensing of controlled substances.” As discussed
earlier, it is plain that the
ordinary meaning of
“control” must apply to §821, so that the plain import of the
provision is to grant the Attorney General rulemaking authority
over all the provisions of part C of the CSA, 21 U.
S. C. A. §§821–830 (main ed. and Supp. 2005). Registering
and deregistering the practitioners who issue the prescriptions
necessary for lawful dispensation of controlled substances plainly
“relat[es] to the … control of the … dispensing of controlled
substances.” §821 (Supp. 2005).
The Attorney General is thus authorized to
promulgate regulations interpreting §§823(f) and 824(a), both by
implicit delegation in §823(f) and by two grounds of explicit
delegation in §821. The Court nevertheless holds that this triply
unambiguous delegation cannot be given full effect because “the
design of the statute,”
ante, at 18, evinces the intent to
grant the Secretary of Health and Human Services exclusive
authority over scientific and medical determinations. This
proposition is not remotely plausible. The Court cites as authority
for the Secretary’s exclusive authority two specific areas in which
his medical determinations are said to be binding on the Attorney
General—with regard to the “scientific and medical evaluation” of a
drug’s effects that precedes its scheduling, §811(b), and with
regard to “the appropriate methods of professional practice in the
medical treatment of the narcotic addiction of various classes of
narcotic addicts,” 42 U. S. C. §290bb–2a; see also 21 U.
S. C. §823(g) (2000 ed. and Supp. II). See
ante, at
17–19. Far from establishing a general principle of Secretary
supremacy with regard to all scientific and medical determinations,
the fact that Congress granted the Secretary specifically defined
authority in the areas of scheduling and addiction treatment,
without otherwise mentioning him in the registration
provisions, suggests, to the contrary, that Congress envisioned
no role for the Secretary in that area—where, as we have
said, interpretive authority was both implicitly and explicitly
conferred upon the Attorney General.
Even if we could rewrite statutes to accord
with sensible “design,” it is far from a certainty that the
Secretary, rather than the Attorney General, ought to control the
registration of physicians. Though registration decisions sometimes
require judgments about the legitimacy of medical practices, the
Department of Justice has seemingly had no difficulty making them.
See
In re Harline, 65 Fed. Reg. 5665;
In re
Tecca, 62 Fed. Reg. 12842;
In re Roth, 60 Fed.
Reg. 62262. But unlike decisions about whether a substance should
be scheduled or whether a narcotics addiction treatment is
legitimate, registration decisions are not exclusively, or even
primarily, concerned with “medical [and] scientific” factors. See
21 U. S. C. §823(f). Rather, the decision to register, or to
bring an action to deregister, an individual
physician
implicates all the policy goals and competing enforcement
priorities that attend any exercise of prosecutorial discretion. It
is entirely reasonable to think (as Congress evidently did) that it
would be easier for the Attorney General occasionally to make
judgments about the legitimacy of medical practices than it would
be for the Secretary to get into the business of law enforcement.
It is, in other words, perfectly consistent with an intelligent
“design of the statute” to give the Nation’s chief law enforcement
official, not its chief health official, broad discretion over the
substantive standards that govern registration and deregistration.
That is
especially true where the contested “scientific
and medical” judgment at issue has to do with the legitimacy of
physician-assisted suicide, which ultimately rests, not on
“science” or “medicine,” but on a naked value judgment. It no more
depends upon a “quintessentially medical judgmen[t],”
ante, at 20, than does the legitimacy of polygamy or
eugenic infanticide. And it requires no particular
medical
training to undertake the objective inquiry into how the continuing
traditions of Western medicine have consistently treated this
subject. See OLC Memo, App. to Pet. for Cert. 113a–130a. The
Secretary’s supposedly superior “medical expertise” to make
“medical judgments,”
ante, at 19–20, is strikingly
irrelevant to the case at hand.
The Court also reasons that, even if the CSA
grants the Attorney General authority to interpret §823(f), the
Directive does not purport to exercise that authority, because it
“does not undertake the five-factor analysis” of §823(f) and does
not “on its face purport to be an
application of the
registration provision in §823(f).”
Ante, at 14 (emphasis
added). This reasoning is sophistic. It would be improper—indeed,
impossible—for the Attorney General to “undertake the
five-factor analysis” of §823(f) and to “appl[y] the registration
provision” outside the context of an actual enforcement proceeding.
But of course the Attorney General may issue regulations to clarify
his interpretation of the five factors, and to signal how he will
apply them in future enforcement proceedings. That is what the
Directive plainly purports to do by citing §824(a)(4), and that is
why the Directive’s conclusion on deregistration is couched in
conditional terms: “Such conduct by a physician …
may
‘render his registration … inconsistent with the public interest’
and therefore subject to
possible suspension or revocation
under 21 U. S. C. [§]824(a)(4).” 66 Fed. Reg. 56608 (emphasis
added).
It follows from what we have said that the
Attorney General’s authoritative interpretations of “public
interest” and “public health and safety” in §823(f) are subject to
Chevron deference. As noted earlier, the Court does not
contest that the absence of notice-and-comment procedures for the
Directive renders
Chevron inapplicable. And there is no
serious argument that “Congress has directly spoken to the precise
question at issue,” or that the Directive’s interpretations of
“public health and safety” and “inconsistent with the public
interest” are not “permissible.”
Chevron, 467 U. S., at
842–843. On the latter point, in fact, the condemnation of assisted
suicide by 50 American jurisdictions supports the Attorney
General’s view. The Attorney General may therefore weigh a
physician’s participation in assisted suicide as a factor
counseling against his registration, or in favor of deregistration,
under §823(f).
In concluding to the contrary, the Court
merely presents the conclusory assertion that “it is doubtful the
Attorney General could cite the ‘public interest’ or ‘public
health’ to deregister a physician simply because he deemed a
controversial practice permitted by state law to have an
illegitimate medical purpose.”
Ante, at 17. But why on
earth not?—especially when he has interpreted the relevant
statutory factors in advance to give fair warning that such a
practice is “inconsistent with the public interest.” The Attorney
General’s discretion to determine the public interest in this area
is admittedly broad—but certainly no broader than other
congressionally conferred Executive powers that we have upheld in
the past. See,
e.g.,
National Broadcasting Co. v.
United States,
319 U. S. 190, 216–217
(1943) (“public interest”);
New York Central Securities
Corp. v.
United States,
287 U. S. 12, 24–25
(1932) (same); see also
Mistretta v.
United
States,
488 U.
S. 361, 415–416 (1989) (Scalia, J., dissenting).
* * *
In sum, the Directive’s first
conclusion—namely that physician-assisted suicide is not a
“legitimate medical purpose”—is supported both by the deference we
owe to the agency’s interpretation of its own regulations and by
the deference we owe to its interpretation of the statute. The
other two conclusions—(2) that prescribing controlled drugs to
assist suicide violates the CSA, and (3) that such conduct is also
“inconsistent with the public interest”—are inevitable consequences
of that first conclusion. Moreover, the third conclusion, standing
alone, is one that the Attorney General is authorized to make.
The Court’s decision today is
perhaps driven by a feeling that the subject of assisted suicide is
none of the Federal Government’s business. It is easy to sympathize
with that position. The prohibition or deterrence of assisted
suicide is certainly not among the enumerated powers conferred on
the United States by the Constitution, and it is within the realm
of public morality
(bonos mores) traditionally addressed
by the so-called police power of the States. But then, neither is
prohibiting the recreational use of drugs or discouraging drug
addiction among the enumerated powers. From an early time in our
national history, the Federal Government has used its enumerated
powers, such as its power to regulate interstate commerce, for the
purpose of protecting public morality—for example, by banning the
interstate shipment of lottery tickets, or the interstate transport
of women for immoral purposes. See
Hoke v.
United
States,
227 U.
S. 308, 321–323 (1913);
Lottery Case,
188 U. S. 321, 356
(1903). Unless we are to repudiate a long and well-established
principle of our jurisprudence, using the federal commerce power to
prevent assisted suicide is unquestionably permissible. The
question before us is not whether Congress
can do this, or
even whether Congress
should do this; but simply whether
Congress
has done this in the CSA. I think there is no
doubt that it has. If the term “
legitimate medical
purpose” has any meaning, it surely excludes the prescription of
drugs to produce death.
For the above reasons, I respectfully dissent
from the judgment of the Court.
Footnote 1
To be sure, this acknowledgment did not go
far enough, because it overlooked the significance of the word
“legitimate,” which is most naturally understood to create an
objective,
federal standard for appropriate medical uses.
See
Mississippi Band of Choctaw Indians v.
Holyfield,
490 U. S. 30, 43 (1989) (“We start …
with the general assumption that in the absence of a plain
indication to the contrary, … Congress when it enacts a statute is
not making the application of the federal act dependent on state
law” (internal quotation marks omitted)).
Footnote 2
The only place outside 21 U. S. C. §801
in which the statute uses the phrase “legitimate medical purpose”
is in defining the phrase “valid prescription” for purposes of the
reporting requirements that apply to mail orders of regulated
substances. See §830(b)(3)(A)(ii). The Regulation did not “parrot”
this statutory section, because the Regulation was adopted in 1971
and the statutory language was added in 2000. See Brief for
Petitioners 17 (citing the Children’s Health Act of 2000, §3652,
114 Stat. 1239, 21 U. S. C. §830(b)(3)). But even if the
statutory language had predated the Regulation, there would be no
“parroting” of that phrase. In using the word “prescription”
without definition in the much more critical §829,
Congress left the task of resolving any ambiguity in that word,
used in that context, to the relevant Executive officer. That the
officer did so by deeming relevant a technically inapplicable
statutory definition contained elsewhere in the statute does not
make him a parrot. He has given to the statutory text a meaning it
did not explicitly—and perhaps even not necessarily—contain.
Footnote 3
The Court concludes that “[e]ven if ‘control’
in §821 were understood to signify something other than its
statutory definition, it would not support the Interpretive Rule.”
Ante, at 13. That conclusion rests upon a
misidentification of the text that the Attorney General, pursuant
to his “control” authority, is interpreting. No one argues that the
word “control” in §821 gives the Attorney General “authority to
define diversion based on his view of legitimate medical practice,”
ibid. Rather, that word authorizes the Attorney General to
interpret (among other things) the “prescription” requirement of
§829. The question then becomes whether the phrase “
legitimate
medical purpose” (which all agree is included in
“prescription”) is at least
open to the interpretation
announced in the Directive. See
Chevron U. S. A.
Inc., v.
Natural Resources Defense Council, Inc.,
467 U. S. 837, 843 (1984). And of
course it is—as the Court effectively concedes two pages earlier:
“All would agree, we should think, that the statutory phrase
‘legitimate medical purpose’ is a generality, susceptible to more
precise definition and open to varying constructions, and thus
ambiguous in the relevant sense.”
Ante, at 11 (citing
Chevron).
Footnote 4
This phrase appears only in the Regulation
and not in the relevant section of the statute. But as pointed out
earlier, the Court does not contest that this is the most
reasonable interpretation of the section—regarding it, indeed, as a
mere “parroting” of the statute.
Footnote 5
Title 21 U. S. C. §903 reads, in
relevant part, as follows: “No provision of this subchapter shall
be construed as indicating an intent on the part of the Congress to
occupy the field in which that provision operates, including
criminal penalties, to the exclusion of any State law on the same
subject matter … unless there is a positive
conflict … .”
Footnote 6
The other case cited by the Court,
FDA v.
Brown & Williamson Tobacco Corp.,
529 U. S. 120
(2000), is even more obviously inapt. There we relied on the first
step of the
Chevron analysis to determine that Congress
had spoken to the precise issue in question, impliedly repealing
the grant of jurisdiction on which the FDA relied. 529 U. S., at
160–161. Here, Congress has not expressly or impliedly authorized
the practice of assisted suicide, or indeed “spoken directly” to
the subject in any way beyond the text of the CSA.
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