17 January 2006

Oregon Death With Dignity Act

Earlier this morning, the US Supreme Court, by a 6-3 margin, upheld the ODWDA, over the protestations of the Bush Administration. AJ Kennedy wrote the majority opinion, with both AJs Scalia and Thomas writing dissents. Kennedy had this to say (.pdf)about the case:
Executive actors often must interpret the enactments Congress has charged them with enforcing and implementing. The parties before us are in sharp disagreement both as to the degree of deference we must accord the Interpretive Rule’s substantive conclusions and whether the Rule is authorized by the statutory text at all. Although balancing the necessary respect for an agency’s knowledge, expertise, and constitutional office with the courts’ role as interpreter of laws can be a delicate matter, familiar principles guide us.


Since the regulation gives no indication how to decide this issue, the Attorney General’s effort to decide it now cannot be considered an interpretation of the regulation. Simply put, 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. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.


The same principle controls here. It is not enough that the terms “public interest,” “public health and safety,” and “Federal law” are used in the part of the statute over which the Attorney General has authority. The statutory terms “public interest” and “public health” do not call on the Attorney General, or any other Executive official, to make an independent assessment of the meaning of federal law. The Attorney General did not base the Interpretive Rule on an application of the five-factor test generally, or the “public health and safety” factor specifically. Even if he had, 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. As for the federal law factor, though it does require the Attorney General to decide “[c]ompliance” with the law, it does not suggest that he may decide what the law says. Were it otherwise, the Attorney General could authoritatively interpret “State” and “local laws,” which are also included in 21 U. S. C. §823(f), despite the obvious constitutional problems in his doing so.
I could keep going, and indeed I might as I dig deeper into the opinion of the Court and the two dissents. What must be noted, however, is that this is no ethics case. This a case of Executive over-reach, and as such it should come as no surprise that the Three Musketeers are dissented. While they generally oppose the encroachment of federal power on the states, they are loathe to decrease the power of the Executive Branch. Indeed, it's legislative encroachment with which they disagree.

This case, then, is about much more than euthanasia. Instead, this case serves as a bellwether for how the Court will respond to the issues of an ever-expanding Executive. Sadly, AJ O'Connor sided with the majority on this one and it's well-known that her potential replacement would have been on the other side of this decision. Granted, the case would only have been 5-4 were events to unfold that way, but it is small consolation when the margin is so thin and the stakes so great.

Lastly, I would like to point out that it's been three or four years since I studied Supreme Court opinions and I will readly admit that I may have misunderstood some of what I've read. For reliable, well-constructed thoughts on this case, I would refer everyone to TalkLeft. More resources as they become available.

MORE from Kennedy's opinion:
The Government’s interpretation of the prescription requirement also fails under the objection that the Attorney General is an unlikely recipient of such broad authority, given the Secretary’s primacy in shaping medical policy under the CSA, and the statute’s otherwise careful allocation of decisionmaking powers. Just as the conventions of expression indicate that Congress is unlikely to alter a statute’s obvious scope and division of authority through muffled hints, the background principles of our federal system also belie the notion that Congress would use such an obscure grant of authority to regulate areas traditionally supervised by the States’ police power.


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