Gonzales v. Oregon – Oral Argument – October 05, 2005

Media for Gonzales v. Oregon

Audio Transcription for Opinion Announcement – January 17, 2006 in Gonzales v. Oregon

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John G. Roberts, Jr.:

The Court will now hear argument in Gonzales v. Oregon.

General Clement.

Paul D. Clement:

Thank you, Mr. Chief Justice, and may it please the Court–

Before Oregon became the first State to authorize assisted suicide, the prescription of federally controlled substances to facilitate suicide generally violated State law and also violated Federal law.

Respondents contend that Oregon’s decision to remove the Statelaw consequences from that conduct also operated to remove the Federallaw consequences.

John Paul Stevens:

May I ask, what Federal law does it violate?

Paul D. Clement:

It violated the Controlled Substances Act.

And the D.A. had taken the position, before Oregon acted, for example, that the fact that a doctor prescribed controlled substances for purposes of a suicide was a basis for revoking his license.

Sandra Day O’Connor:

Well, now, would that be true also for any doctor who provided the substances to furnish an execution of a convicted death penalty convict?

Paul D. Clement:

No, Justice O’Connor, the death penalty situation, lethal injection, is different, for a number of reasons.

Of course, the D.A. has long taken a position of nonenforcement in that context, which would be protected by this Court’s decision in Heckler against Cheney.

Sandra Day O’Connor:

But, otherwise, it would be the same reasoning–

Paul D. Clement:

I don’t think it would, Justice O’Connor, at least not since 1994, because in 1994 Congress passed a statute that I think is best read as ratifying the practice of lethal injection.

This is 18 U.S.C. 3596.

And that statute authorizes the Federal Government to use the method of execution in the State of the sentencing court.

And at the time that was passed, in 1994, the overwhelming majority… something like 25 of the 38 States… had already used lethal injection.

So, I would read that as–

Sandra Day O’Connor:

–But would it be open–

–to the Attorney General to pass a regulation like this one, and all of a sudden apply it… some new Attorney General, who had a very different view of the death penalty?

Paul D. Clement:

–a ratification–

–No, I don’t think so, Justice O’Connor, and I think the reason is, at a minimum, 18 U.S.C. 3596, because I think that would now stand as an obstacle to that type of regulatory impression–

David H. Souter:

Does the–

Sandra Day O’Connor:

Well, not if it just refers back to the States, would it?

Paul D. Clement:

–No, but this is a provision that dictates how the Federal Government shall do its executions.

And I think, at that time, in 1994, it effectively ratified the practice of using lethal injection.

I–

David H. Souter:

–Does the statute… does the Federal statute specifically authorize doctors to do this?

Or does it simply say that convicts may be executed by lethal injection?

Paul D. Clement:

–Well, the statute itself says that the Federal Government shall use the method in the State in which the sentencing court sits, the Federal sentencing court.

David H. Souter:

No, but the method may simply be lethal injection.

David H. Souter:

And, going back to Justice O’Connor’s question, it might still be the case that, on the theory the Government is advancing this morning, it would be unlawful for a doctor to engage in that, because that was, in fact, not within the limits of the practice of medicine, the doctor was using a controlled substance for something outside the practice of medicine, and hence, it would be illegal.

Paul D. Clement:

And again, Justice Souter, I think the best reading is, that is now foreclosed… that interpretation would be foreclosed by Congress’s action in 1994.

There are also some technical differences–

David H. Souter:

But I take it Congress did not refer specifically to… or did not include a specific authorization of doctors, so that we’d have to do a little construction to get to your point.

Paul D. Clement:

–I think we would have to do a little construction, in fairness, but I do think… I mean, and there also are some differences, because, for example, as I understand the practice in most States, doctors actually aren’t exactly involved in the specific process of administering the lethal injection.

There’s also a technical difference, which is, with respect to lethal injection, it’s not the federally controlled substance which is the lethal agent.

It’s just that there’s a federally controlled substance that’s used to administer… to relieve pain in conjunction with a different injection that’s not… that does not involve a federally controlled substance.

And that’s actually the lethal agent.

Here, of course, it’s–

Stephen G. Breyer:

In your view, were it not for the statute, the Federal statute, your view of the Attorney General’s authority is… leaving that statute aside, if it weren’t there… the Attorney General, should we have an Attorney General who is opposed to the death penalty, could, in fact, regulate or stop Federal… State death penalties, through this same mechanism, by saying that no physician can be registered insofar as he engages in that.

Paul D. Clement:

–Justice Breyer, I haven’t thoroughly considered the issue, precisely because I do think the ’94 statute stands as an obstacle.

It may be that some of the differences in the way that the death penalty is administered, the fact that doctors aren’t directly involved–

Antonin Scalia:

At most, it–

Paul D. Clement:

–would allow for–

Antonin Scalia:

–at most, it would allow him to prosecute, or to move for the discertification of doctors who engage in that practice.

And if the State chooses to do it without doctors, it would be okay.

Paul D. Clement:

–I think that’s right.

As I say, I think some of the technical ways in which the penalty is administered could make a difference.

Stephen G. Breyer:

Well, what we’re getting… at least what I’m getting at was this is, I would probably have read the statute to say that the drug statute, which is trying to stop drug addiction and heroin and… has nothing to do with the death penalty.

And I would think that the argument on the other side is that the statute has nothing to do with assisted suicide.

Congress didn’t think about the death penalty, and it didn’t think about assisted suicide.

It’s rather like the tobacco case, except a fortiori.

Now, what’s your response to that?

Paul D. Clement:

Well, several points, Justice Breyer.

I think that, first of all, I would say that Congress did focus on suicide, if not physician assisted suicide, and I think that’s an important distinction that I’d like to come back to.

But I actually think the comparison to the tobacco case is quite instructive, because there what you had is a statute in which something seemed like it might come within the plain terms of the FDCA, and yet if you took that literally, it would run smack into another statutory scheme.

And here, there is no other statutory scheme.

To the contrary, the most natural reading of the Controlled Substances Act, I would say… and I’ll address it in a minute… is that this falls within the authority of the Attorney General.

And if you look to any alternative congressional indication of intent on this topic, the only thing you would find is the Assisted Suicide Funding Restriction Act of 1997, which continues a Federal policy against assisted suicide.

Ruth Bader Ginsburg:

May I comment–

Paul D. Clement:

So, in that sense, I think it’s very different than the Brown and Williamson case.

Now, taking, though–

Ruth Bader Ginsburg:

–May I–

Paul D. Clement:

–as to what Congress–

Ruth Bader Ginsburg:

–may I ask you about the position this Court took in Glucksberg?

That is, everyone on the Court in that case seemed to assume that physician assisted suicide was a matter for the State, and the Government, at that time, said,

“State legislatures undoubtedly have the authority to create the kind of exception to assisted suicide fashioned by the court of appeals. “

“There is every reason to believe that State legislatures will address the urgent issues involved in this case in a fair and impartial way. “

And then the Government added that,

“There is no indication that the political processes are malfunctioning in this area. “

That was a position presented to this Court in the Glucksberg case by the Government.

Now, you are rejecting that position.

Paul D. Clement:

–With respect, Justice Ginsburg, I don’t think so.

I… we stand by the brief in Glucksberg.

Now, obviously in the Glucksberg case, the Federal law that everybody was focused on… and, in fairness, the United States was focused on… was the Federal Constitution.

And so, that’s one important difference.

Another important difference… and I think this is an important point… is that the Federal regulation here, the interpretation of the Attorney General, does not purport to foreclose the issue of assisted suicide–

David H. Souter:

Well, they say–

Paul D. Clement:

–which is–

David H. Souter:

–that, in practical terms, that is exactly what it does, because the only way they can administer their law sensibly is by using these kinds of drugs, scheduled drugs.

Paul D. Clement:

–Well, Justice Souter, we don’t have a factual record on that question.

I think it’s not clear that that’s the case, because, I mean, proponents of physician assisted suicide have identified alternative methods.

Perhaps the most notorious proponent of physician assisted suicide, Dr. Kevorkian, operated without a federal controlled substance license for the last six years before his conviction–

David H. Souter:

Well, did he use–

Paul D. Clement:

–at the time–

David H. Souter:

–did he use a controlled substance?

Paul D. Clement:

–He did not.

He did not, which is why he could do that.

So, it just goes to prove that physician assisted suicide and the use of federally controlled substances for physician assisted suicide are not coextensive.

Ruth Bader Ginsburg:

But we’re told that the… those methods are less gentle to the patient, the methods that the State of Oregon has authorized its physicians to prescribe.

Ruth Bader Ginsburg:

We are told, at least in some of the briefs, that, from the patient’s point of view, it’s much less upsetting.

Paul D. Clement:

Justice Ginsburg, we operate without a factual record on that point.

In doing some outside reading, it seems that some of the other methods are actually disapproved, not because they’re less… more painful, but because it’s more obvious that it’s a suicide, in certain cases, and the administration of scheduled drugs sort of blurs that line.

John Paul Stevens:

General Clement–

Paul D. Clement:

But I guess my point would be, even if we take it as true that controlled substances are the most efficient way to do this, I take it as a given that if Oregon doctors decided that a schedule 1 substance was the most effective way to administer a lethal overdose–

Ruth Bader Ginsburg:

But Congress–

Paul D. Clement:

–after this Court’s–

Ruth Bader Ginsburg:

–Congress spoke–

Paul D. Clement:

–decision in Raich–

Ruth Bader Ginsburg:

–Congress spoke about section… schedule 1 drugs, and that’s what’s lacking here.

Congress says schedule 1 drugs, those are no, never; schedule 2 okay on a doctor’s prescription.

Paul D. Clement:

–I agree there is that difference between schedule 1 and schedule 2 substances.

Now, I think that brings us to the Attorney General’s regulation, which is a longstanding regulation.

John Paul Stevens:

–General Clement, before you go there, I want to question you about your distinction between Dr. Kevorkian and a doctor who uses controlled substances.

Why could not the Attorney General treat Dr. Kevorkian’s conduct as conduct that may threaten the public health and safety, and seek his… cancellation of his license?

Paul D. Clement:

Justice Stevens, I don’t think he could.

First of all, I think it’s clear that that isn’t the authority that’s invoked here.

And the Attorney General in the–

John Paul Stevens:

Well, he–

Paul D. Clement:

–OLC opinion are patently–

John Paul Stevens:

–he can rely–

Paul D. Clement:

–clear on that.

John Paul Stevens:

–on things like prior convictions, other things unrelated to a specific transaction.

And if he thinks that assisted suicide is contrary conduct that threatens the public interest, health and safety, I don’t know why that wouldn’t apply to Dr. Kevorkian, as well as somebody using controlled substances.

Paul D. Clement:

Well, Justice Stevens, the reason I would say that it wouldn’t is, I think you have to read this regulation against a backdrop that for 90 years the Federal Government has been involved in the regulation of controlled substances.

Now, there have been a lot of statements and a lot of court opinions during that 90 years–

John Paul Stevens:

But the Attorney General’s directive, if I remember it, does not identify any particular controlled substance.

It just identifies a particular kind of conduct by the doctor.

Paul D. Clement:

–The… I’m not sure if you’re referring to the statute or the regulation.

I would say it this way, which is to say–

John Paul Stevens:

Neither one.

Neither one is identifying which schedule 2 or schedule 3 substance may not be used.

Paul D. Clement:

–I think that’s fair, Justice Stevens.

I don’t take issue with that.

And I think you’re right to say that the statutory grant of authority to the Attorney General is quite broad.

He’s supposed to make judgments in the public interest about public health and safety.

The point I was trying to make is, I would read all of that against the backdrop that for 90 years the Federal Government has been involved in the regulation of controlled substance.

And we all know that that is going to have an incidental effect on State regulation–

Anthony M. Kennedy:

Well, for me–

Paul D. Clement:

–of medicine.

Anthony M. Kennedy:

–for me, the case turns on the statute.

And it’s a hard case.

And it seems to me that your answer to Justice Stevens would be to say that the Justice Department has found this practice to be an abuse of the drug.

But then, my question… and if… if you had, in fact, given that answer, my question–

[Laughter]

–my question would then be, Isn’t that an odd statutory scheme, where the Attorney General can find it to be an abuse of the use of the drug if the State of Oregon has specifically told its doctors, under special procedures in defined circumstances, that they can administer it?

Paul D. Clement:

Well, I don’t think that would be an odd regime. I think if, for example, Oregon made a radically different judgment and said that in Oregon it was going to be permissible to have treatment or detoxification programs that involve the administration of radically larger quantities of controlled substances than had been recognized in any other State, I think, under the authority of cases like Moore, the Attorney General can make a judgment… now, that’s not a legitimate medical purpose, that’s–

Anthony M. Kennedy:

Well, that’s–

Paul D. Clement:

–an abuse.

Anthony M. Kennedy:

–that’s… that’s a… the slipper slope argument that I wanted to explore a bit.

If we do rule against you, and for the State of Oregon, on the statute, you do think that there will be some other serious consequence which will hinder the Department of Justice in an orderly implementation of this statute, particularly under the abuse formulation?

Paul D. Clement:

I think there could be, Justice Kennedy.

I don’t want to overstate it, in the sense that… one of the reasons you don’t see that much of a conflict between Federal and State law in the regulation of controlled substances is because, in the main, the States have adopted uniform controlled substances acts that mirror the Federal Act, and, in most of the instances there, works in the way of cooperative federalism in dealing with this problem.

This Court tends to see the cases… Raich, in this case… where there’s a conflict between the State regime and the Federal regime.

And I guess my point is the… in a such a comprehensive Federal regime, if this Court makes clear that State law can overtake the Federal regime, I think it at least creates the potential for there to be a lot of holes in the regime and the possibility, if States take the… take you up on that invitation–

Anthony M. Kennedy:

But part–

Paul D. Clement:

–to really undermine the regime.

Anthony M. Kennedy:

–part of the regime referred to under the statute… and it’s 801(a) implementing the convention on psychotropic drugs… and there, the implementation incorporates the treaty… but it says that,

“This shall not displace the judgment of the medical community, as determined by the Secretary. “

And it seems to me that that cuts against you in this case.

Paul D. Clement:

Well, Justice Kennedy, it is perfectly true that there are places in the statute where medical or scientific decisions are expressly given to the Secretary of Health and Human Services and not the Attorney General, but it is equally true that there are places in the Controlled Substances Act where medical determinations or public health determinations are given expressly to the Attorney General and not the Secretary of Health and Human Services.

And one of the places, of course, that’s true is Sections 823 and 824 of Title 1… Title 21… which, of course, are the provisions about the registration and revocation of registrants.

And Congress–

Sandra Day O’Connor:

Well, certainly the practice of medicine by physicians is an area traditionally regulated by the States, is it not?

Paul D. Clement:

–It absolutely is, Justice O’Connor, but–

Sandra Day O’Connor:

And there is nothing express in the statute suggesting that it’s designed to put in the hands of the Federal Government or the Attorney General the regulation of the practice of medicine, is there?

Paul D. Clement:

–Justice O’Connor, there’s nothing that says we want to take over the regulation of medicine, but it’s crystal clear–

Sandra Day O’Connor:

Well, and there were two attempts, were there not, to get legislation passed to do this expressly in Congress, and they failed?

Paul D. Clement:

–Well, yes, but I think this Court is always hesitant to draw inferences from–

Sandra Day O’Connor:

Yes.

Paul D. Clement:

–failed legislative efforts.

And if–

Sandra Day O’Connor:

Yes.

Paul D. Clement:

–the Attorney General had not adopted this interpretation, it may be that this Congress would have passed those initiatives–

Sandra Day O’Connor:

And a prior Attorney General had a different interpretation.

Paul D. Clement:

–And the prior administer of the DEA before that had our position.

So, this is an area where I think, you know, there are different approaches to this.

What I wanted to make clear, though, is, you’re absolutely right that the regulation of medicine is… this Court has observed… is traditionally left to the States.

But that has to be reconciled with the fact that for 90 years the Federal Government has had a prominent role in the regulation of controlled substances.

And it’s been clear–

Sandra Day O’Connor:

Yeah, but–

Paul D. Clement:

–since the very–

Sandra Day O’Connor:

–are these… are these drugs classified as illegal, for all purposes?

Paul D. Clement:

–Not for all–

Sandra Day O’Connor:

No.

Paul D. Clement:

–purposes, but they are highly classified, highly controlled substances.

They are the… the substances that are at issue here are the most highly controlled lawful substances.

And I think if you go back to the history of the Harrison Act, it’s been clear since the very first prosecutions under the Harrison Narcotics Act of 1914 that the Federal Government’s ability to regulate medicine was going to have an incidental effect on the State’s ability to regulate medicine.

I mean, States had much more of a laissez attitude towards… laissez faire attitude towards the opium trade, but that was really displaced by the–

Sandra Day O’Connor:

Yeah, but it’s a–

Sandra Day O’Connor:

“No one can prescribe this substance. “

Paul D. Clement:

–Harrison Act.

Sandra Day O’Connor:

–it’s a different thing to regulate by saying,

“It’s so lethal, we won’t let anyone prescribe it at all. “

And it’s quite different to say,

“This… if a… if a physician follows the Oregon law, it’s a… it’s not a legitimate practice of medicine. “

That’s a very different approach.

Paul D. Clement:

Justice O’Connor, I can’t tell you there isn’t a difference between the treatment of schedule 1 substances–

Sandra Day O’Connor:

Yeah.

Paul D. Clement:

–that are just verboten for all purposes and schedule 2 substances, but the regulation of Federal controlled substances in the Harrison Act has always focused on drugs that have some lawful medical uses but are–

John G. Roberts, Jr.:

What–

Paul D. Clement:

–also susceptible to abuse.

John G. Roberts, Jr.:

–what is the closest analog you have, outside of the present case, where the Attorney General’s enforcement activity has impinged upon what the State has recognized as medical practice?

Paul D. Clement:

Well, I think I would… I mean, I… I guess I would do two answers to that, Mr.–

Chief Justice.

One, I would point to the fact that, at the genesis of the Harrison Act, it really was displacing State medical judgments about the opium trade.

I would point to two other examples, one under this statute and one other the… under the FDCA.

The idea under the FDCA… the example that comes to mind is the FDA’s treatment of Laetrile, that this Court addressed in the Rutherford decision.

In that case, 17 States had made a judgment that Laetrile was… could be available, for prescription use, to treat cancer.

And the FDA, by refusing to approve Laetrile–

John G. Roberts, Jr.:

Well, that’s the FDA.

I’m talking about the Attorney General, under this statute.

Paul D. Clement:

–Well, then I think I would… I mean, I… I’m not sure I can point to a decision by the Attorney General, but I think it’s… in the structure of this Act… obviously the schedule 1 treatment of marijuana that this Court had before it in the Raich case, involved a situation where the Act clearly displaced the medical judgments of California and nine other States–

David H. Souter:

No, but–

Paul D. Clement:

–who recognized–

David H. Souter:

–that was a clear act of Congress.

I mean, Congress had made that decision, and it was unmistakable.

It seems to me that the problem that you have, with your reference back to the Harrison Act and the 90 years of regulation, is that the 90 years of regulation was regulation for the purpose of stopping drug pushing and drug abuse, in the conventional sense.

And to say that a statute… or a statutory history taken into consideration in determining the scope of this statute, with that kind of a history, can support a view that suddenly the Attorney General of the United States is given, in effect, the sole authority to determine whether any State may or may not authorize assisted suicide, and may do so in a way that any other Attorney General can flip back and forth… as has happened in this case, if Attorney General Reno was wrong… seems to me a kind of argument from history that simply cuts against you, because it leads to a sort of a bizarre result.

I mean, what is your response to that?

Paul D. Clement:

–Well, Justice Souter, I think you have to look at the regulation of drug abuse and ask, To what end was Congress regulating these substances?

David H. Souter:

Well, and I… as I said, it seems to me that your 91 years of history say that the end that Congress had in mind was to stop drug pushing and stop conventional drug abuse.

It didn’t have any more… there’s no indication that I know of that Congress had assisted suicide in mind, any more than it had the administration of the death penalty in mind.

Paul D. Clement:

Well, Justice Souter, what I would say is, what Congress had in mind in enacting these substances is, they were concerned about drug abuse, not for its own sake, but for the debilitating effect it has on people’s lives, for its tendency to destroy lives.

And I will grant you that Congress, in 1970, did not have before it in its contemplation a State that would make physician assisted suicide lawful.

But that’s because it would have been unthinkable at that time.

And what Congress did have clearly in its contemplation is the fact that a clear manifestation of a drug’s potential for abuse was the fact that it could lead to suicide and overdoses.

And that’s page 35 of the House report, for those that look at legislative history.

And I actually think that’s–

David H. Souter:

Suicide is a result of the kind of dementia that comes from drug abuse.

That is not suicide under the circumstances that we’re talking about within the limits of the Oregon law.

Paul D. Clement:

–Well, Congress didn’t specify, one way or another.

And what I would… I would point you to the House report, because I think it actually is indicative, because when Congress is framing the issue, they first look at the extent of the problem.

And one of the ways they identify the problem as serious is, they point to overdoses that are taking place among teenagers.

And then, in the next section of the report, they look at the question of the consequences of drug abuse.

And what do they point to as–

John Paul Stevens:

General, then may I just ask this question?

We’re focusing on whether congress really authorized this action by the Attorney General.

And in the Raich case, which, of course, was a close case… there were three dissents in the case… the… there was great attention on the fact Congress had considered the interstate market for the product involved, an impact on the market if it was allowed to be sold in… or grown and so forth in California.

But is there any evidence at all that Congress thought that any of these… schedule 2 or 3 substances that are used in assisted suicide situations… that Congress focused on the impact of that use on the interstate market for those drugs?

Paul D. Clement:

–Well, Justice Stevens, I mean, I… first of all, I would say, as it compared to Raich, I would almost think this is an a fortiori case, as it affects commerce, because, unlike Raich, which, of course, were untraditional noncommercial transactions, the transactions at issue here are standard commercial transactions that are–

John Paul Stevens:

But are they–

Paul D. Clement:

–well within–

John Paul Stevens:

–are they transactions that have any impact on any market, any commercial market, that Congress ever mentioned?

Paul D. Clement:

–I think they do.

And I sure hope they do, because this is a situation where Congress and the Federal Government pervasively regulates the drug transactions at issue here in a way that even respondents don’t object to.

The details of the form that you fill out for the prescription, the fact that it has to be in writing, the regulations specify whether it has to be in pen or pencil… I mean, there’s such a pervasive involvement of the Federal Government in the regulation of these controlled substances that I don’t think there’s any additional commerce clause extension by regulating the purpose for which the prescription is being made.

That’s what the DEA did in the context of Marinol, when it was first moved from schedule 1 to schedule 2, that… we discuss that in detail on page 30 of our brief.

And I think that kind of regulation, although it’s not a common feature of the DEA in its administration of the Controlled Substances Act, is an important one, is a legitimate one.

And I guess what I would say, with respect to Congress’s intent, is, it seems to me odd to think that a Congress that was concerned about overdoses, concerned about suicides, would be indifferent or agnostic on the question of using federally controlled substances for the express purpose of inducing a lethal overdose.

Stephen G. Breyer:

Why were… you were going to say, at one point… why was Congress concerned about overdoses of narcotics and so forth?

Why?

Paul D. Clement:

I think they were concerned with it part and parcel of… because, I mean, I think of the things that Congress does when it regulates is, it regulates to protect life, to protect health and safety–

Stephen G. Breyer:

But, I mean, there was a reason, wasn’t there, that they’re worried about people taking narcotics?

Paul D. Clement:

–I mean, sure–

Stephen G. Breyer:

Right.

Paul D. Clement:

–there are.

Sure they are.

Stephen G. Breyer:

Right.

What was the main–

Paul D. Clement:

And they’re worried about the impact–

Stephen G. Breyer:

–I would have thought it was narcotics addiction.

Paul D. Clement:

–Well, I think it is, but, again, I think–

Stephen G. Breyer:

All right.

Well, if it is narcotics addiction–

Paul D. Clement:

–But not solely.

Stephen G. Breyer:

–and I would have thought that was it–

Paul D. Clement:

No, not solely.

Stephen G. Breyer:

–All right.

All right.

Again, because you know I’m going to say, What has this got to do with that?

So, why not solely?

[Laughter]

Not solely.

You go ahead.

What else?

Paul D. Clement:

And, again, I mean, I think, you know, addiction qua addiction was not the concern so much as addiction because of its tendency to debilitate lives–

Not solely.

Stephen G. Breyer:

Right.

Paul D. Clement:

–to destroy lives–

Stephen G. Breyer:

Yes.

Yes, but it’s through addiction.

And this seems to–

Paul D. Clement:

–Well, no, I don’t think that’s right, Justice Breyer.

Stephen G. Breyer:

–No?

Paul D. Clement:

I think there are a number of instances where the abuse that is being… that Congress is concerned with is not solely the addictive abuse.

I mean, to take one example, Congress has recently, as part of the controlled substances regime, regulated GHB, one of these so called “date rape drugs”.

And the concern for abuse there is not its addictive quality, but the fact that it can be used in a way that’s not medical, that can be very pernicious, and the like.

And so, I think that’s just another example of this concept of abuse being much broader than a narrow focus on diversion or a narrow focus on addiction.

David H. Souter:

Yeah, but even in your example, the concern of Congress is with the use of the drug to hurt people who do not understand that they’re going to be hurt, and don’t want to be hurt, and perhaps, in your example, the use of the drug to facilitate the violation of the law, that seems to me worlds away from what we’re talking about here.

Paul D. Clement:

Well, Justice Souter, I would simply say that the Controlled Substances Act, if you look at it, is a very paternalistic piece of legislation.

It’s not designed to let people make their own judgments about the health risk.

And if I could reserve the remainder of my time?

John G. Roberts, Jr.:

Thank you, General Clement.

Mr. Atkinson. ON BEHALF OF RESPONDENTS–

Robert Moorehead Atkinson:

Mr. Chief Justice, and may it please the Court–

Since Gibbons versus Ogden, at the very latest, this Court has recognized that, in the system of dual sovereignty created by American federalism–

Sandra Day O’Connor:

Would you speak up just a little, please?

Robert Moorehead Atkinson:

–I’m sorry, Your Honor, I will.

Antonin Scalia:

Maybe elevate your… the microphone.

Sandra Day O’Connor:

Maybe you could raise the podium.

Antonin Scalia:

You’re too tall. [Laughter]

Robert Moorehead Atkinson:

I’ll work on that, Your Honor.

Ruth Bader Ginsburg:

Raise it up.

Sandra Day O’Connor:

No, that… the crank will raise it, if you… no, the other way around.

Thank you.

Robert Moorehead Atkinson:

Yes, Your Honor.

What the Court said in Gibbons versus Ogden was that health laws of every description were for the States to regulate.

In Glucksberg, this Court–

John G. Roberts, Jr.:

–Well, the relationship between the States and the Federal Government has changed a little since Gibbons versus Ogden.

John G. Roberts, Jr.:

[Laughter]

Robert Moorehead Atkinson:

–That’s certainly true, Your Honor.

And yet I think if you look both at your opinion in Glucksberg and in the opinion… excuse me… and in the text of the Controlled Substances Act, you will find that this Court has recognized that this specific subject, physician assisted dying, is one that is for the States to regulate.

John G. Roberts, Jr.:

Well, that begs the question… if you had said “this specific subject”, the regulation of controlled substances, your answer would have come out the other way, which is kind of what the case is about.

Robert Moorehead Atkinson:

I agree.

And let me talk, then, about the… why we believe the text of the statute demonstrates that Congress intended to leave the decision about what is, and is not, a legitimate medical practice to the States, as it has always been.

And that’s the key question in this case, because the U.S. Attorney General–

Stephen G. Breyer:

Yes, because, I mean, wouldn’t… suppose that some State said that,

“We think doctors can prescribe, for people who want to take it, morphine for recreational use. “

Robert Moorehead Atkinson:

–Your Honor, there are a number of limits clear in the Controlled Substances Act.

But taking the hypothetical you’ve offered, specifically, we think that the answer would have to be that Congress intended to leave the definition of what is a legitimate medical practice to the States.

Stephen G. Breyer:

No matter what?

I mean, they have cases and so forth that say,

“Of course a State could go too far. “

“A State might decided it’s. “

–just what I said.

And you’re going to say your case turns or falls… you win or lose, depending on whether I accept that a State could not stop a doctor from becoming, in effect, a conduit to a group of drug dealers by saying,

“I think recreational use is part of my medical practice? “

That would be up to the State?

Robert Moorehead Atkinson:

Certainly, the State could stop it, yes.

The question–

Stephen G. Breyer:

No.

Antonin Scalia:

No, it didn’t “stop it”–

Robert Moorehead Atkinson:

–But that–

Antonin Scalia:

–but could the State allow it?

Robert Moorehead Atkinson:

–Yes.

Antonin Scalia:

And if the State allowed it, the Federal Government would have to allow the drugs to be used for that purpose–

Robert Moorehead Atkinson:

Well–

Antonin Scalia:

–you’re saying.

Robert Moorehead Atkinson:

–there are a number of limits in the text of the Act itself.

Robert Moorehead Atkinson:

There are limits in other Federal statutes not contained in the CSA.

There is also the political limits on irresponsible lawmaking at both the State and the Federal level that have served us well for almost 200 years.

Antonin Scalia:

I would have thought that at the time this legislation was enacted, it would have been as unthinkable for a State to allow drugs to be used… to be prescribed by a doctor to kill a patient as it would be for drugs to be subscribed by a doctor to make the patient feel better.

Robert Moorehead Atkinson:

Your Honor, many drugs–

Antonin Scalia:

I mean, I think that assisted suicide would have been as unthinkable at the time this was enacted as prescribing cocaine just for recreational use.

Robert Moorehead Atkinson:

–We don’t suggest that Congress had physician assisted dying specifically in mind at the time that it enacted the Controlled Substances Act.

What we do think that Congress had in mind was the 200-year history of State regulation of medicine, of the practice of medicine, and what were, and were not, legitimate medical purposes.

Ruth Bader Ginsburg:

But you agree… you… in answer to Justice Breyer’s question, he mentioned a drug that was a schedule 1 drug, morphine.

Or maybe–

Robert Moorehead Atkinson:

I’m sorry–

Ruth Bader Ginsburg:

–perhaps it isn’t–

Robert Moorehead Atkinson:

–I think it is a schedule 2 drug, Your Honor.

Ruth Bader Ginsburg:

–It’s schedule 2 drug.

Robert Moorehead Atkinson:

Yes.

We certainly don’t suggest that a State could authorize the use of a schedule 1 drug for any purpose at all.

Ruth Bader Ginsburg:

But are you saying that if the doctor is using it, saying,

“In my medical judgment, this makes people happy; and, therefore, I’m going to prescribe it. “

that a State could permit that?

Wouldn’t the Moore case rule that out?

Robert Moorehead Atkinson:

I don’t think so, Your Honor.

There aren’t… there is no history of the U.S. Attorney General prosecuting any doctor at any time in the… in the… since before Moore–

Ruth Bader Ginsburg:

But I thought the idea of Moore was, if you’re using this, the doctor is prescribing the drug as a pusher.

Robert Moorehead Atkinson:

–That’s correct.

And we have no… we have–

John G. Roberts, Jr.:

Well, but let’s… but the supposition is that the State legal judgment is that that’s the wrong characterization, that it’s legitimate medical practice to make patients feel better, and morphine does that; and so, the State can allow them to prescribe morphine to make people feel better.

And I understand your position to be that that would be permissible?

Robert Moorehead Atkinson:

–Yes.

John G. Roberts, Jr.:

That could not… that’s not prohibited under the Controlled–

Robert Moorehead Atkinson:

That is–

John G. Roberts, Jr.:

–Substances Act.

Robert Moorehead Atkinson:

–that is not prohibited under the Controlled Substances Act if the doctor was acting consistent with the specific terms of the Act and the specific terms of the State statutes.

Sandra Day O’Connor:

And you say the Attorney General of the United States could not deem it to be drug abuse under the Act if a State allowed that for recreational use or to cure depression or… How about steroids for bodybuilders +/?

and decided that’s perfectly okay.

Now, can the Attorney General find that that’s drug abuse?

Robert Moorehead Atkinson:

As the term U.S. Attorney General is authorized to make, and required to make.

It is not otherwise generally used.

What the Controlled Substance–

Sandra Day O’Connor:

Well, I don’t know that I understand your answer.

Could the Attorney General deem the authorization… purported authorization by a physician to use morphine to help with depression, or steroids for bodybuilding… can that Attorney General say, under the Act, that’s drug abuse?

Robert Moorehead Atkinson:

–Not if it is permitted by… and regulated by State law.

Stephen G. Breyer:

Suppose I disagreed with you about that, then would you lose the case?

Robert Moorehead Atkinson:

I would certainly lose ground, Your Honor.

[Laughter]

Stephen G. Breyer:

I’m asking, if I disagreed with you that I thought… we take the facts of Moore, where he’s a drug pusher, the doctor, and, for some unknown reason, the State says,

“That’s fine, it doesn’t violate State law. “

but the Attorney General says,

“Do what you want about State law. “

“I think it violates the Federal law. “

Suppose I think the Attorney General does have the right to do that for… assuming it… assuming it… then what do you say about this case?

Robert Moorehead Atkinson:

Well, first of all, we don’t think, Justice Breyer, that what the U.S. Attorney General is attempting to do here is reasonable within the scope of whatever authority he has.

Moreover, he has not followed the processes and procedures that are specified in the Controlled Substances Act.

But our first position in this case is, he simply lacks the authority to do that.

The Controlled Substances Act reflects, first, in Section 903, the antipreemption provision, which is found in the State’s brief, at page 36, that Congress intended not to intrude on State laws that would otherwise be within the authority of the State.

John G. Roberts, Jr.:

What does that do to the effectiveness of regulation under the Controlled Substances Act?

If one State can say it’s legal for doctors to prescribe morphine to make people feel better, or to prescribe steroids for bodybuilding, doesn’t that undermine the uniformity of the Federal law and make enforcement impossible?

Robert Moorehead Atkinson:

I don’t believe it does, Mr.–

Chief Justice.

In the first instance, we think the U.S. Attorney General’s claim of uniformity is overstated.

We think it’s clear from the text of the statute that Congress intended to leave the definition of what is, or is not, a legitimate medical practice in the hands–

John G. Roberts, Jr.:

Well, that may or–

Robert Moorehead Atkinson:

–of the States.

John G. Roberts, Jr.:

–may not be true.

But focus on the particular question.

If you have one State that allows the use of a drug that the Federal Government has determined is illegal, and is illegal everywhere else because other States haven’t done it, how is the Federal Government supposed to enforce that prohibition?

Robert Moorehead Atkinson:

Well, I don’t think the Federal Government is supposed to enforce that prohibition if the prohibition… if we’re dealing with a schedule 2, 3, or 4 or 5 substance.

Congress has clearly spoken to schedule 1 substances.

Once we move into the other substances, traditionally and has… as has… as been the… as is the case today in every State, physicians, under the regulation of State medical boards, prescribe those medications for purposes other than those for which they’re normally prescribed.

John G. Roberts, Jr.:

I’m trying to get at the specific enforcement point.

If you have one State that allows morphine to be used legally for–

Robert Moorehead Atkinson:

Yes.

John G. Roberts, Jr.:

–recreational purposes, how is the Federal Government supposed to enforce the prohibition on that elsewhere?

Robert Moorehead Atkinson:

Well, there is no… well, the Congress can prescribe… can enforce it in any State in which it is not authorized by State law.

If the U.S. Attorney General wants to regulate it in a State where it is authorized by State law, he must go to Congress and get a clear statement of authority to do that.

David H. Souter:

But are you saying, in response to the Chief Justice’s question, that, in fact, Congress, itself, could not explicitly pass a statute that says,

“No State, through its doctors or otherwise, may authorize the use of morphine– “

Robert Moorehead Atkinson:

Not at all, Justice Souter.

David H. Souter:

–All right.

So, you’re not making a–

Robert Moorehead Atkinson:

No, not–

David H. Souter:

–constitutional–

Robert Moorehead Atkinson:

–at all.

David H. Souter:

–argument.

You’re sticking to your statutory argument.

Robert Moorehead Atkinson:

We’re sticking to the statutory argument.

David H. Souter:

Okay.

Antonin Scalia:

Which comes down to an argument that “accepted medical practice” means accepted medical practice State by State–

Robert Moorehead Atkinson:

That’s correct.

Antonin Scalia:

–rather than on some uniform basis. Do you have any other area, regarding the enforcement of this Act, where the drug is allowed, or not allowed, to be used on the basis of divergent views of medical practice by divergent States?

Robert Moorehead Atkinson:

There are any number of areas in which–

Antonin Scalia:

Such as?

Robert Moorehead Atkinson:

–States diverge.

Such as… palliative care, I think, is the most obvious example.

These days, there is a great deal of divergence among the States as to how–

Antonin Scalia:

In palliative care?

And you think in some States you can… you can prescribe these drugs without violating the Act; whereas, in other States, the same prescription would violate the Act.

Robert Moorehead Atkinson:

–In some States, a prescription would violate State law; and in other cases, in other States, that same prescription would not.

Antonin Scalia:

Would it violate the Federal law in those other States?

Robert Moorehead Atkinson:

It would if the… if the prescription violated the State law, the U.S. Attorney General could take action against the physician.

Antonin Scalia:

Oh.

So you say that in… with respect to many aspects of this legislation, what’s lawful… and what’s lawful depends upon the accepted medical practice within the State.

Robert Moorehead Atkinson:

That’s exactly correct, Justice–

Antonin Scalia:

Does this have to be reflected in the State medical board determinations, or just in what the… what the doctors in that region tend to think is a good idea?

Robert Moorehead Atkinson:

–Your Honor, what we believe is that what Congress did in enacting the Controlled Substances Act was leave those decisions to the States to enforce according to their traditional methods.

Now, in some cases, that may be by statute; in some cases, the States may discipline doctors for… through a State medical board.

Antonin Scalia:

Any cases that you can think of where the same prescription has been held okay in one State and not okay in another State?

Robert Moorehead Atkinson:

Your Honor, we’re not aware of any cases in which the U.S. Attorney General has ever attempted to deregister or to prosecute a doctor who was acting in accordance with State law.

We have a history that we’re… to… at least since the Controlled Substances Act, in 1970, where the U.S. Attorney General has never attempted to suggest, as he does here, that something that is permissible under State law is, in any sense, a violation–

John Paul Stevens:

Yes, but the–

Robert Moorehead Atkinson:

–of the Controlled Substances Act.

John Paul Stevens:

–statute goes beyond the State law, the five factors, you know, on the… justify the–

And some are in compliance with State law, but the fifth factor is,

Robert Moorehead Atkinson:

Yes.

John Paul Stevens:

–revocation.

“such other conduct which may threaten the public health and safety. “

It seems to me that’s a clear grant of authority to go beyond State law.

Robert Moorehead Atkinson:

Justice Stevens, we think that the best reading of the five factors is that they continue to respect State laws.

Certainly, that’s what the legislative history, for those of you who would be willing to look at it, of the 1984 amendments reflects.

Congress was not concerned about how States were defining legitimate medical practices.

Congress was concerned about the failure to enforce existing State law.

And that’s clearly reflected in the legislative history, some of which is set out in the State’s brief, on page 36, in note 16.

Robert Moorehead Atkinson:

But if you look at those five factors, what they are addressed to is individual applicants… that is, individual doctors… not to broad medical purposes.

And what you’re seeing here in the Attorney General’s claim of authority, for the first time, is rules that are not addressed to controlled substances, per se, but to medical practices, and that is something that the Congress simply never contemplated giving you.

John G. Roberts, Jr.:

Well, what do you do with regulation 1306, which… the one that, of course, talks about “legitimate medical purpose”?

That was promulgated in 1971.

It wasn’t directed to the Oregon statute.

And yet it suggests that the Attorney General has the authority to interpret that phrase.

Robert Moorehead Atkinson:

Well, we think there’s… there are two answers to that, Chief… Mr. Chief Justice.

The first is that, in Harris versus Christensen, this Court said that a Federal agent cannot promulgate a new regulation in the guise of interpreting an old one.

Now, in 1971, when that regulation to which you refer was enacted, it was absolutely clear that the U.S. Attorney General could not have deregistered an Oregon doctor who was acting in accordance with State law, because, as this Court pointed out in United States versus Moore, the registration was a matter… was as a matter of right if the… if the physician was in good standing with State medical authorities.

So, what he’s attempting to do today, in the guise of interpreting that rule, is to make it mean something entirely different than what it meant when he enacted it.

And I think Christensen versus Harris County says that he simply cannot do that.

John G. Roberts, Jr.:

You had a–

Antonin Scalia:

The–

John G. Roberts, Jr.:

–second answer?

Robert Moorehead Atkinson:

Excuse me?

John G. Roberts, Jr.:

I’m sorry.

Antonin Scalia:

–Mr. Atkinson, you’ve spent most of your time talking about the statute and the regulations.

John G. Roberts, Jr.:

You had a second answer?

Robert Moorehead Atkinson:

That’s all right.

I’m… I… I’m happy with the first one, at this point.

[Laughter]

Antonin Scalia:

Do you also make the argument that, even if the Government wanted to do this thing, it would be unconstitutional?

Robert Moorehead Atkinson:

We do, Your Honor.

One of the questions presented in Raich was whether Congress “could” do what it had done.

The question here is… first of all, is whether Congress “did” what it had done.

And our point is not necessarily that it would be unconstitutional, but that it would raise a significant constitutional question, which implicates the clearstatement rule and the constitutional avoidance rule.

Antonin Scalia:

But why would it raise a significant constitutional question?

I take it that it’s none of the Government’s business whether people gamble or not.

I take it, it’s none of the… the Federal Government… I take it, it’s none of the Federal Government’s business whether people are allowed to drink at 21 or at 18, innumerable other things, which really are matters that belong to the police power of the States.

But the Federal Government has chosen to regulate those things through the use of its commerce power.

Antonin Scalia:

Is the drinking age any more a matter of… or any less a matter of State privilege than suicide?

Robert Moorehead Atkinson:

No, I wouldn’t say that–

Antonin Scalia:

So, are those… are those entries of the Federal Government into the regulation of drinking age, are they unconstitutional–

Robert Moorehead Atkinson:

–No, Justice Scalia.

Antonin Scalia:

–or do they raise serious constitutional questions?

Robert Moorehead Atkinson:

No, they don’t, Justice Scalia.

Antonin Scalia:

Well, why does this one?

I don’t–

Robert Moorehead Atkinson:

The difference here is simply that there… the amounts, as was suggested earlier, are so minute that there cannot be any significant effect on interstate commerce.

There is not even any evidence in this record that there is a market for the drugs that are used under the Death with Dignity Act, much less if there is an illicit trade.

There’s no question here of… as the Court described it in Raich, where you had a $10 billion market of–

Antonin Scalia:

–Well, if ten States adopted assisted suicide, it might be a different… a different–

Robert Moorehead Atkinson:

–Once again–

–in Oregon’s experience, we have a small number of people, most of whom consume the drug.

Antonin Scalia:

–constitutional–

Robert Moorehead Atkinson:

–Your Honor, in–

Antonin Scalia:

–question.

Robert Moorehead Atkinson:

The amounts that are left over, even if this law spread nationwide, would not be significant.

Stephen G. Breyer:

Would you spend a minute–

Anthony M. Kennedy:

The statute gives the Attorney General authority to promulgate regulations for the dispensing of drug… 821… and that seems to me to describe precisely what the Attorney General has done here.

Robert Moorehead Atkinson:

I can’t disagree with that, Justice Kennedy.

The question is, Does he have authority to tell a doctor in a particular State, not by reference to a particular drug that he may not dispense this drug, but that he may not dispense a drug for a specific medical purpose?

And, as I’ve suggested, this is the first time we’ve ever seen that happen.

And we think that’s because it’s inconsistent with the congressional design, which was to leave the subject of what are, and are not, legitimate medical purposes to the States and to… and to have the U.S. Attorney General promulgate rules that deal with things like the… like prescriptions, scheduling of those drugs so that they are on schedule 2 or schedule 3 or perhaps–

Anthony M. Kennedy:

Well, it seems to me–

Robert Moorehead Atkinson:

–schedule 1.

Anthony M. Kennedy:

–very odd to have a regulation on dispensing that takes no account of the purpose for which the drug is being used.

Robert Moorehead Atkinson:

Well, we think it’s somewhat odder, frankly, Justice Kennedy, to suggest that Congress intended to authorize a single unelected Federal official to decide, in his sole and apparently unreviewable discretion, that this medical practice, of which he disapproves, may not be–

Anthony M. Kennedy:

Well, but I give–

Robert Moorehead Atkinson:

–followed.

Anthony M. Kennedy:

–you a statutory reference, and then you tell me about something else.

Robert Moorehead Atkinson:

Well, no, I… we agree that he gets to authorize regulations on dispensation… to require, for example, that there be prescriptions before it be dispensed, that physicians shall follow certain rules and regulations before they dispense, and those are the kinds of things on which we agree he has the authority to engage in rulemaking and to… and to promulgate uniform–

Stephen G. Breyer:

–I’m sorry, on that, I didn’t think that the reg was defining the word “dispense”.

I thought the statute defines the word “dispense”.

And it’s… persons registered by the AG to dispense controlled substances are exempt.

And then you look at who is such a person.

A person who does that is a practitioner.

And who is a practitioner?

A registered practitioner is one who prescribes, a physician registered by the United States to distribute or dispense a controlled substance in the course of professional practice.

And I thought this reg is defining

“in the course of professional practice. “

Am I wrong about that?

I thought it was a reg that says,

“In the course of professional practice, the prescription, to be effective, must be a legitimate medical purpose by an individual practitioner. “

Now, I might be wrong.

How does it work?

Robert Moorehead Atkinson:

–No, I think that’s absolutely right.

But the question… that is a very different question from the question of, Who gets to define, as a matter of policy, what is a “legitimate medical practice”?

Stephen G. Breyer:

On the matter of policy, I would… since… if you… if you’ve said basically what you want to say in your argument, I would appreciate your devoting a minute to an assumption which you don’t want to agree with.

But suppose I were to assume that a State is not free, through the device of defining what’s good medical practice, to gut the Act… that is, to really make marijuana or something else, like morphine, legal… because they disagree with Congress’s basic judgment that it should be illegal.

That could happen.

Robert Moorehead Atkinson:

It could.

Stephen G. Breyer:

Now, suppose I think that the AG does have the power to stop Congress from gutting the Act.

All right?

Now, on that, do I have… if I believe that, on that assumption, do I have to decide this case against you?

Robert Moorehead Atkinson:

No.

Stephen G. Breyer:

And if not, why not?

Robert Moorehead Atkinson:

There are at least two reasons for that, Justice Breyer.

The first is the commerce clause question, which we believe to be–

Stephen G. Breyer:

Suppose, on the commerce clause question, I… on assumption, I don’t agree with you, either… then do I have to decide?

Stephen G. Breyer:

[Laughter]

Robert Moorehead Atkinson:

–I’m starting to be backed into a corner.

[Laughter]

I think… I think the third answer then becomes the procedural answer, Justice Breyer, and that is that what the U.S. Attorney General is doing here violates the rule this Court stated in Christensen versus Harris County, and he is attempting to do, by an administrative rule, what he can only do by notice in comment rulemaking.

Antonin Scalia:

I would–

Stephen G. Breyer:

Far be it from me to suggest an argument that you don’t want to make, but, I mean, I’ve found it different, in life and law, when you pass a rule in a State that guts an Act, from when you pass the rule in a State that doesn’t seem to have much to do with the purpose of the Act.

Robert Moorehead Atkinson:

Well, I certainly would not disagree with that in–

Antonin Scalia:

–Yes, you would.

I think–

[Laughter] It seems to me… it seems to me that you… that you cannot accept the premise that it guts the Act, if you come in here with the proposition, which you do, that what the Act says is whatever is accepted medical practice within the State is okay.

That’s your principal point.

Robert Moorehead Atkinson:

–That is correct.

Antonin Scalia:

But the Act does not refer to any overall Federal accepted medical practice.

It refers to accepted medical practice, State by State.

And, therefore, it in no way guts the Act if a State wants to let these drugs be used for, you know, make people happy purposes.

I don’t see how you can accept the premise.

Robert Moorehead Atkinson:

I wasn’t anxious to accept it, Justice Scalia, but I–

–I was… I thought I was being told to.

Let me–

[Laughter]

–but let me… let me offer, if I can… we–

Ruth Bader Ginsburg:

May I ask you, in… Mr. Atkinson, in response to the question you were just asked, you said there were procedural problems, no notice in comment.

So, that’s a “how” it’s done.

Robert Moorehead Atkinson:

–That’s–

Ruth Bader Ginsburg:

How about the “who”?

Is this something… how does it work under the Controlled Substance Act?

What authority does the Department of HHS have?

What is the division of authority between those two under the Act?

The Attorney General, on the one hand, and the Department of Health and Human Services, and including the FDA, on the other.

Robert Moorehead Atkinson:

–Justice Ginsburg, I can’t answer that question in specific respect to this case, because there is no authority in the Controlled Substances Act for anyone to do what has been done here… that is, to focus on the specific medical practice and say, “No controlled substance”–

Ruth Bader Ginsburg:

But you made–

Robert Moorehead Atkinson:

–“# can be used for”–

Ruth Bader Ginsburg:

–you made a point earlier that the Attorney General has never done this before, has never said,

“You can’t prescribe particular drugs for. “

–has… that has not been done.

You’ve been giving examples of where the FDA ruled that you can’t–

Robert Moorehead Atkinson:

–That’s correct.

Ruth Bader Ginsburg:

–use a drug.

And that control is nationwide, no matter what the State medical board thinks, right?

Robert Moorehead Atkinson:

Yes.

There is… there are… for example, in scheduling of drugs… and the U.S. Attorney General suggests, for example, that he could simply schedule these drugs in a way to… as a way of avoiding the Oregon Act… or voiding the Oregon Act, as it were.

And, to do that, he has to get his medical and scientific advice from the Secretary of Health and Services, and must accept that advice and be bound by it.

And certainly, that wasn’t done in this case.

So, I hope that answers your question.

Ruth Bader Ginsburg:

Who… the consultation, you said, was not with HHS, and it wasn’t with Oregon?

Who did the Attorney General consult?

Robert Moorehead Atkinson:

To the best of our knowledge, it was solely done within the Department of Justice.

John Paul Stevens:

May ask this question concerning the… Justice Scalia’s suggestion that you’re insisting the States would have the authority to act independently of a congressional prohibition against the use of a substance to make people happy and so forth.

Isn’t your point in this case that Congress hasn’t really spoken to the issue to which the Attorney General has spoken?

Robert Moorehead Atkinson:

That’s exactly right, Justice Stevens.

John Paul Stevens:

Which is the opposite of the case that Justice Scalia point, where the Congress has spoken to the issue.

Robert Moorehead Atkinson:

And there are circumstances in which it has, and those in which it has not.

And to try to respond to Justice Scalia’s point, again I would invoke the 200 years of responsible regulation of the practice of medicine, which is the backdrop against which Congress legislated in this case.

Congress does not lightly assume, nor should it, that States are going to… are going to simply legalize drugs to make people happy.

It hasn’t happened.

Congress doesn’t assume it’s going to happen.

States act responsibly.

Congress assumes–

John G. Roberts, Jr.:

Well, but in 1971 Congress didn’t assume the States were going to pass legislation for use of drugs to assist with suicide, either.

Robert Moorehead Atkinson:

–No, that’s certainly true, Mr. Chief Justice.

Robert Moorehead Atkinson:

But Congress knew, as we all know, that the practice of medicine evolves, that things change, that today’s… acupuncture, the use of Botox, things that were unheard of 30 years ago, are all accepted medical practices today, and they are all regulated by the States, not by the U.S. Attorney General.

And the question here is whether Congress intended to enact a uniform medical practices–

Antonin Scalia:

These are all different manners of assisting people to stay alive or assisting people to feel better.

Assisting people to die is something of a totally different category.

Robert Moorehead Atkinson:

–Justice Scalia, I have to disagree.

There’s a great deal of medical practice now, and attention, focused on end of life issues.

This Court has seen them.

For example, in Cruzan, the Court said it is a matter for the States to decide those things.

The Court has seen cases that involve do not resuscitate orders.

The Court is familiar with living wills.

There are any number of–

Antonin Scalia:

I don’t deny that.

I… I’m not taking a position on whether, you know, a State wants to allow it, or not.

I’m just taking a position on whether it was envisioned by Congress, in 1971, that accepted medical practice would include prescribing drugs to help somebody end his life.

And I don’t think it… I don’t think it would have occurred to Congress.

Robert Moorehead Atkinson:

–I don’t think that it would have occurred to them either, Justice Scalia, but I do think what occurred to them was that that was a matter that, like any other matter dealing with the regulation of medical practice, the States could be trusted to act responsibly.

That’s what Oregon has done here.

That’s what this Court invited the States to do in Glucksberg.

David H. Souter:

But I take it you would agree that, in effect, all you need to win on the statutory argument is for us to accept the premise that Congress may very well have intended to interfere with the practice of medicine and to authorize the Attorney General to do it, insofar as the practice of medicine would have gutted the statute… e.g., doctors who prescribe recreational drugs, doctors who, in effect, cater to pushers… but that Congress did not intend to go any further than that in authorizing interference with the practice of medicine.

I take it you agree that if we accepted that premise, that would be sufficient for you in this case.

Robert Moorehead Atkinson:

That’s absolutely true.

David H. Souter:

Okay.

Robert Moorehead Atkinson:

That’s absolutely true, Justice Souter. But… this case is obviously about statutory construction, but it’s about statutory construction in a very special area, and that is the area of federalism, of the relationship between the sovereign States and the Federal Government.

We think it’s clear, from examining the statute, that Congress intended to retain and respect the historic powers of the States to define legitimate medical practices.

John G. Roberts, Jr.:

Thank you, Counsel.

General Clement, you have four minutes remaining.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court–

I think Respondents have embraced the logical consequences of their position.

And what it results in is turning the Controlled Substances Act, the federal Controlled Substances Act, into an odd patchwork.

It also is profoundly ahistorical, because, at the time of the Harrison Act of 1914… which the Controlled Substances Act was intended to strengthen, not weaken, as this Court pointed out in Moore… at that time, the States had a variety of different approaches to opium and heroin and other… and cocaine and other substances… opium and cocaine now of which land on schedule 2.

Paul D. Clement:

Some of them tightly regulated them, some of them allowed them in over the counter tonics in large quantities.

And the point of the Harrison Act was to clean that up and impose a uniform Federal regime.

And they knew it would have an impact on State regulation of medicine.

And even the Court, in the Linder days, recognize that that was not, per se, a constitutional problem.

Antonin Scalia:

But what about gutting? Never mind Mr. Atkinson’s argument.

What about gutting?

Paul D. Clement:

Well, it’s an odd statutory… I mean, I’m not familiar with the… with the principle that the Federal authority only extends to prevent that which would gut the statute, and no further.

That seems like an odd principle.

And I think that, here, it is a perfectly legitimate interpretation of this statute to say that a Congress that was profoundly concerned with overdoses, with suicide, with drug abuse, precisely because of its debilitating effect on people’s lives, would not have been agnostic at the prospect of–

John G. Roberts, Jr.:

At the time–

Paul D. Clement:

–controlled substances.

John G. Roberts, Jr.:

–at the time this statute was passed to deal with lax State treatment of opium, was opium regulated as part of medical practice in any of the States?

Paul D. Clement:

It was, Mr. Chief Justice.

They were all over the map, but there was clearly a recognition that doctors were part and parcel of the problem, that there were needs in States to more closely regulate both the doctors and the pharmacies.

That was, kind of, the two problems that gave rise to this.

And there’s no question that the impact of the Federal program was profound on the State’s practice of medicine.

Nonetheless, that program was upheld, and that has been the tradition in this area.

Anthony M. Kennedy:

Was the impact profound because they were in what’s now schedule 1, that they were just prohibited?

In other words, were doctors allowed to prescribe opium for some purposes?

Paul D. Clement:

They were.

And opium’s now on schedule 2.

The Harrison Act did not have the schedules we’re familiar with from the Controlled Substance.

But most of what was at issue… I mean, opium, in its various forms, morphine, all of that of that is now on schedule 2, and that’s really what prompted the Harrison Act in the first instance.

John Paul Stevens:

May I ask you this question? If the Attorney General determined that acupuncture was conduct that threatened the public health and safety, could he delicense, or revoke, the license of doctors who engaged in acupuncture?

Paul D. Clement:

I don’t think so, Justice Stevens.

It’s the same reason as my answer earlier, which is, I think you have to look at this regime, and read it in light of the 90 years of Federal involvement in the regulation of controlled substances and the lack of a traditional Federal role in regulating medicine qua medicine.

And I think this is on the… on the side of the line of regulating controlled substances.

With respect to the commerce clause issue, I would… thought that one thing that came clear out of the Raich decision is that the relevant factor to consider is not the class of activities that a State decides to decriminalize, but, rather, the class of activities that Congress decides to regulate.

And with respect to schedule 2 substances, I would think this case is a fortiori.

We’re not talking about substances that are homegrown and are never part of a commercial transaction.

Paul D. Clement:

And even those who were in the dissent in Raich, I think, would think that this was an appropriate commerce clause application.

This case is to Raich as the regulation of commercial farming would be to Wickard against Filburn.

It is a much different situation.

Congress’s commerce clause power is more robust here.

I wanted to remark and focus for a minute on what an odd statute Oregon has passed.

The practitioner respondents point out it is a prescribing law only.

And Oregon itself points out that what’s allowed here is the prescription, but not the administration, of these substances.

Even what Oregon does, does not purport to be medicine, as one traditionally understands it.

I can think of no other medical substance where a doctor can prescribe it, but not administer it.

And I think if you look at that aspect of the statute, what becomes clear is that Oregon is not regulating medicine, it’s purporting to basically take a Federal regulatory regime that allows doctors the ability to get at schedule 2 substances.

Thank you, Mr. Chief Justice.

John G. Roberts, Jr.:

Thank you, General Clement.

The case is submitted.