Reply Brief — Gonzales v. Oregon

Supreme Cout, US

FILED

Jn the Supreme Court of the Anited States

CLERK

JOHN D. ASHCROFT, ATTORNEY GENERAL, ET AL.,

PETITIONERS

Vv.

STATE OF OREGON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

Washington, D.C. 26530-0001

(202) 514-2217

TABLE OF AUTHORITIES

Cases:

Alaska Dep't of Envtl. Conservation v. EPA,

See Se GD cccnncscecccscsenmnsnsnnssencssnsensscsenesemnenasescets

Auer v. Robbins, 519 U.S. 452 (1997) .........cccccceeeeees

Barnhart v. Walton, 535 U.S. 212 (2002) ...................

California Fed. Sav. & Loan Ass’n v. Guerra, 479

hs SEED GI UP coscencesnznascnmnscenmnansesesensssenssnansnesnenemeemmnness

Christensen v. Harris County, 529 U.S. 576 (2000)

City of Edmonds v. Oxford House, Inc., 514 US.

Se CITED cennsnemscsscragmenememaptsmennnscemenenmneeemen

Gately v. Massachusetts, 2 F.3d 1221 (1st Cir.

1993), cert. denied, 511 U.S. 1082 (1994)... cee

Gooding v. United States, 416 U.S. 430 (1974) .........

Gregory v. Ashcroft, 501 U.S. 452 (1974) ......cceeeesees

Hodel v. Virginia Surface Mining & Reclamation

Fe ne

Jerome v. United States, 318 U.S. 101 (1948) ...........

Kane v. Kulongoski, 871 P.2d 993 (Or. 1994) ...........

Linder v. United States, 268 U.S. 5 (1925) ..........cc0+.

Minor v. United States, 396 U.S. 87 (19639) ...............

Mississippi Band of Choctaw Indians v. Holyfield,

GD GE, SGD ccsesssarnseestemntcennnnneessns

Raygor v. Regents of the Univ. of Minn., 534 U.S.

Reina v. United States, 364 U.S. 507 (1960) .............

Solid Waste Agency v. Army Corps of Eng’rs,

oe TEEN

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504

GRID ceresssserstenmeanemusetseneceneensanmemmmenstinnmnemnmee

United States v. Darby, 312 U.S. 100 (1941) .............

United States v. Lot 5, Fox Grove, 23 F.3d 359

(11th Cir. 1994), cert. denied, 513 U.S. 1076 (1995) .

United States v. Mead Corp., 533 U.S. 218 (2001) ...

United States v. Moore, 423 U.S. 122 (1975) ........0000

United States v. Oakland Cannabis Buyers’ Coop.,

rn

(I)

orm & or

II

Constitution, statutes and regulation:

U.S. Const.:

Commerce Clause

Supremacy Clause .

Controlled Substances Act:

21 U.S.C. 801 et seq.

21 U.S.C. 823(a)(1) ....

21 U.S.C. 829......

21 C.F.R.:

Section 1306.04(a) siasiatea

Section 1308.12(b)(1) .

Section 1308.12(b)(4)

Or. Rev. Stat. §§ 161.605 & 161.625 (2003)

Miscellaneous:

American Medical Association, Current Opinions

of the Council of Ethical and Judicial Affairs,

E-2.211, Physician-Assisted Suicide, <http://www.

ama-assn.org/ama/pub/category/print/8459.html>

(last visited Jan. 24, 2005)>

H.R. Rep. No. 1444, 91st Cong., 2d Sess. Pt. 1

(1970) .

S. Rep. No. 225, 98th Cong., Ist Sess. (1983)

oo

10

In the Supreme Court of the United States

No. 04-623

JOHN D. ASHCROFT, ATTORNEY GENERAL, ET AL.,

PETITIONERS

v.

STATE OF OREGON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

Since 1971, Department of Justice regulations implement-

ing the Controlled Substances Act (CSA), 21 U.S.C. 801 et

seq., have provided that a prescription for drugs covered by

the Act is valid only if issued for a “legitimate medical

purpose” as part of “professional treatment.” 21 C.F.R.

1306.04(a). In 2001, the Attorney General issued an inter-

pretive ruling to clarify that a prescription for the purpose of

assisting an individual to commit suicide is not made for a

“legitimate medical purpose” for “treatment” within the

meauing of Section 1306.04(a). The court of appeals struck

down the Attorney General’s interpretive rule on the ground

that the CSA does not contain “an ‘unmistakably clear’

indication * * * that it intended to authorize the Attorney

General to regulate the practice of physician assisted

suicide.” Pet. App. 12a. The petition demonstrates (Pet. 20-

23) that the court of appeals’ ruling represents a dramatic

expansion of this Court’s decision in Gregory v. Ashcroft, 501

U.S. 452 (1991). The consequence of applying Gregory's clear

statement rule not just to statutes that implicate the

(1)

essential attributes of state sovereignty but to every federal

statute that assertedly affects an area of traditional state

- regulation—even when a S*«*e stands alone in its policy

judgment—would be to uncet.iine the uniform application of

national regulatory schemes by making their content depen-

dent upon the vagaries of state law. That result cannot be

squared with this Court’s consistent application of the

opposite presumption: “[{I}n 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.” Mississippi Band of Choctaw Indians v. Holy-

field, 490 U.S. 30, 43 (1989) (quoting Jerome v. United States,

318 U.S. 101, 104 (1943)).

Respondents do nothing to allay concerns about the broad

sweep of the court of appeals’ ruling. To the contrary, they

embrace it. The Court should grant certiorari to review the

court of appeals’ radical new rule regarding the interplay of

state and federal law.

1. a. Oregon suggests that this Court’s review is not

warranted because the court of appeals’ decision applies a

purportedly “long-established” rule that “a clear statement

of Congressional intent” is necessary whenever federal legis-

lation would “displace” a State’s policy in “an area tradi-

tionally and historically within the States’ regulatory

powers.” Or. Br. in Opp. 12, 13. Oregon’s reliance on

Gregory for such a proposition (id. at 11) is wholly misplaced.

Gregory stressed that a State’s decision as to the qualifica-

tions for its own judges—i.e., the composition of its own

government—went “beyond an area traditionally regulated

by the States,” and was, rather, a “decision of the most

fundamental sort for a sovereign entity.” 501 U.S. at 460

(emphasis added). See City of Edmonds v. Oxford House,

Inc., 514 U.S. 725, 732 n.5 (1995) (emphasizing the same with

respect to Gregory). Raygor v. Regents of the University of

Minnesota, 534 U.S. 533 (2002), on which Oregon also relies

(Or. Br. in Opp. 11), similarly involved a fundamental char-

acteristic of state sovereignty, the terms on which the State

had consented to suit in its own courts. 534 U.S. at 544.

Other courts of appeals, as the petition notes (Pet. 21), have

rejected attempts to extend Gregory in the manner adopted

by the Ninth Circuit and advocated by respondents. See

United States v. Lot 5, Fox Grove, 23 F.3d 359, 362 (11th Cir.

1994), cert. denied, 513 U.S. 1076 (1995); Gately v.

Massachusetts, 2 F.3d 1221, 1230 (1st Cir. 1993), cert. denied,

511 U.S. 1082 (1994).

b. Oregon also invokes (Or. Br. in Opp. 8, 12, 13, 17) a

separate clear statement rule based on Solid Waste Agency

v. Army Corps of Engineers, 531 U.S. 159 (2001), but that

decision is likewise inapposite here. In Solid Waste Agency,

the Court applied the doctrine of constitutional avoidance:

“Where an administrative interpretation of a statute invokes

the outer limits of Congress’ power, we expect a clear indi-

cation that Congress intended that result.” Jd. at 172. The

“significant constitutional question[]” avoided in Solid Waste

Agency was whether application of the Clean Water Act to

“nonnavigable, isolated, intrastate waters” would be within

Congress’s Commerce Clause authority. Jd. at 172-173.

There is no similar constitutionally dubious application to

be avoided here. Regulation of the distribution of controlled

substances pursuant to the CSA does not “invoke[] the outer

limits of Congress’ power” or “push the limit of congressional

authority” under the Commerce Clause. Solid Waste

Agency, 531 U.S. at 172-173. This Court has repeatedly

upheld federal regulation of the distribution of controlled

substances by doctors and pharmacists as within Congress’s

Commerce Clause authority. Minor v. United States, 396

U.S. 87, 98 n.13 (1969) (ban on sale of narcotics is within

Congress’s constitutional power); Reina v. United States,

364 U.S. 507, 511 (1960) (Congress had “undoubted power to

enact the narcotics laws”). See Gov't Br. 14-17, 20-22 and

Reply Br. 3-12, Ashcroft v. Raich, No. 03-1454 (argued Nov.

29, 2004).

Nor is there some independent constitutional limitation on

Congress’s power to legislate with respect to medical

matters. The court of appeals cited Linder v. United States,

268 U.S. 5 (1925), as establishing a constitutional prohibition

against Congress’s legislating in a way that affects “control

of medical practice in the states.” Pet. App. 10a, 12a. As the

petition explains (Pet. 22), however, Linder relied upon the

Lochner-era doctrine that Congress could not employ its

enumerated powers to accomplish general goals relating to

health and welfare. See Linder, 268 U.S. at 17. That

doctrine was expressly disavowed in United States v. Darby,

312 U.S. 100, 115-117 (1941). While respondents cite more

recent cases that refer to the States’ traditional role in

regulating health and medicine (Or. Br. in Opp. 14-15;

Rasmussen Br. in Opp. 15-16, 18), none of them suggests that

there is a constitutional limitation on Congress’s ability to

exercise the full scope of its enumerated powers simply

because it may have some effect on the practice of medicine.

Indeed, this Court has applied the CSA in cases where its

impact on the practice of medicine and state law was obvious

without intimating the existence of any such constitutional

limitation. United States v. Oakland Cannabis Buyers’

Coop., 532 U.S. 483, 494-495 (2001) (CSA precludes recogni-

tion of a “medical necessity” defense for marijuana use,

based on the recommendation of a physician, despite Califor-

nia’s determination that marijuana has medical utility);

United States v. Moore, 423 U.S. 122, 139 (1975) (upholding

CSA conviction of physician for dispensing controlled sub-

stances from his medical j ractice).

c. Respondents’ briefs in opposition confirm the poten-

tially staggering breadth of the court of appeals’ clear state-

ment rule. Respondents affirmatively trumpet that under

the court of appeals’ ruling, a clear statement is required

whenever the federal statute or regulation in question in-

volves an area that is “historically within the States’ regul-

atory powers.” Or. Br. in Opp. 13. See Rasmussen Br. in

Opp. 15-18. Under that approach, virtually every federal

regulation would need a clear statement from Congress,

because “the States’ regulatory powers” encompass every-

thing not forbidden by the Constitution. Hodel v. Virginia

Surface Mining & Reclamation Ass'n, 452 U.S. 264, 311

(1981) (“(T)he reserved police powers of the States * * *

are plenary unless challenged as violating some specific

provision of the Constitution.”). Thus, far from establishing

that the decision below is a narrow, fact-specific ruling,

respondents’ briefs underscore its breadth. The Ninth Cir-

cuit’s departure from decisions of this Court and other courts

of appeals on an issue so basic to the allocation of powers

between Congress and the States warrants review by this

Court.

2. Respondents also suggest (Or. Br. in Opp. 17-18;

Rasmussen Br. in Opp. 15-17) that the court of appeals’ deci-

sion can be supported as an application of the presumption

against federal preemption of state law. See Pet. App. 14a-

15a. That presumption is unavailing to respondents here

because the Attorney General’s interpretive ruling does not

preempt Oregon’s assisted suicide law. When a “state

statute is pre-empted by federal law,” it is thereby rendered

“invalid under the Supremacy Clause of the Constitution.”

California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272,

280 (1987). As Oregon concedes, however, the Attorney

General’s interpretive ruling “does not suggest that the

[Oregon law] is invalid. He asserts only that his authority

over controlled substances allows him to prevent * * * use

{of such controlled substances] for purposes authorized by

the Oregon law.” Or. Br. in Opp. 9 n.7. On that point,

Oregon is correct. Oregon’s law remains valid and continues

to have the effect of “exempt[ing] physicians who comply

with the provisions of the proposed measure from

prosecution under (Or. Rev. Stat. §§ 161.605 and 161.625

(2003)],” which otherwise make it a state law felony for

anyone, including a physician, to aid a suicide. Kane v.

Kulongoski, 871 P.2d 993, 998 (Or. 1994). Moreover, to the

extent doctors in Oregon dispense substances other than

those regulated under the CSA to hasten their patients’

deaths, the Attorney General's interpretive ruling has no

relevance whatsoever to their conduct.

Oregon’s de-criminalization law for physician-assisted sui-

cide is no more preempted than California’s laws de-

criminalizing the possession and use of marijuana for medical

purposes. But despite their ability to remove parallel and

duplicative state-law prohibitions, States are not free to

establish state-law exceptions to the federal-law duty to

comply with the CSA. See Oakland Cannabis, 532 U.S. 494-

495 (CSA precludes “medical necessity” defense, despite a

California law recognizing marijuana’s purported medical

utility). The contrary rule that respondents urge would

stand the Supremacy Clause on its head, presumptively

“preempting” federal law whenever it conflicted with state

law.

3. a. The court of appeals’ holding that the Attorney

General’s interpretive rule exceeded his authority was

thoroughly infected by its mistaken understanding of the

proper framework of analysis and standard of review. For

example, the court of appeals refused to defer to the Attor-

ney General’s construction of the CSA and implementing

regulation because the court mistakenly believed, based on

the serious errors discussed above, that the interpretive rule

“exceeds the scope of the CSA and ignores the Attorney

General’s limited role,” Pet. App. 22a, and that, under Solid

Waste Agency, the court was free to “refuse[] to defer to [the

Attorney General's] interpretation of its own regulations

without clear authority from Congress,” id. at 23a. Respon-

dents cannot separate the court of appeals’ ultimate holding

from its flawed starting point.

b. Applying the proper framework of statutory con-

struction and deference to administrative actions, the Attor-

ney General’s interpretive ruling is plainly valid. As the

petition explains (Pet. 19), the appropriate presumption,

even in cases that touch upon areas of traditional state regu-

lation, such as child custody, is that a national federal regu-

latory scheme does not yield to or depend on state law. See

Mississippi Band of Choctaw Indians, 490 U.S. at 43, 47.

And specifically with respect to the CSA, this Court’s pre-

cedents already establish that Congress intended the CSA to

provide a “comprehensive federal scheme for the control of

drug abuse.” Gooding v. United States, 416 U.S. 430, 449

(1974). In Moore, the Court recognized that the CSA re-

quires prescriptions to be made “in accordance with a stan-

dard of medical practice generally recognized and accepted

in the United States.” 423 U.S. at 139. And, more recently,

in Oakland Cannabis, the Court rejected the claim that

Californians using marijuana for medical purposes “upon the

recommendation or approval of a physician” consistent with

California law were thereby exempt from the prohibitions in

the CSA, in light of the federal classification of marijuana as

a Class I substance with no recognized medical use. 532 U.S.

at 486, 490, 494-495.

Respondents’ attempts to distinguish those cases are

unavailing. Oregon maintains (Or. Br. in Opp. 16-17) that

Moore is distinguishable because it arose from the District of

Columbia, where there was no State law to apply. But

nothing in the CSA distinguishes its application in the

District of Columbia from elsewhere, and Oregon points to

nothing in the Court’s opinion to suggest that the site of the

crime was relevant to the decision. Indeed, as pointed out in

the petition (at 18 n.5), other courts of appeals, in conflict

with the decision below, have adhered to Moore and applied

a national standard for professional practice under the CSA.

Respondents also suggest (Or. Br. in Opp. 16; Rasmussen

Br. in Opp. 8; Patient Br. in Opp. 14) that Oakland Cannabis

is distinguishable because that case dealt with a drug for

which there was no accepted medical use. That argument

simply ignores the central teaching of Oakland Cannabis—

that it was the federal determination of medical utility that

governed, not the contrary state determination. Respon-

dents offer no basis in the statutory text for concluding that

only the initial scheduling involves a federal determination

as to a substance’s utility for a legitimate and accepted medi-

cal purpose. On respen ents’ view, California could equally

trump federal law with respect to opium and cocaine—

Schedule II substances, 21 C.F.R. 1308.12(b)(1) and (4)—

instead of marijuana. Indeed, in light of the Attorney Gen-

eral’s responsibility under the CSA to ensure an “adequate

* * * supply” of Schedule II substances “for legitimate

medical * * * purposes,” 21 U.S.C. 823(a)(1), the Attorney

General would, under respondents’ interpretation, be af-

firmatively required to ensure an adequate supply of such

substances for whatever uses a particular State decided to

recognize. There is nothing in the text of the CSA that

requires such an anomalous result. Moore, which involved a

Schedule II substance (methadone), is to the contrary. See

423 U.S. at 124.

c. Because the court of appeals concluded that state law

should define “legitimate medical purpose” under the CSA, it

did not address whether the Attorney General’s interpre-

tation was correct or entitled to deference as a matter of

federal law. See Pet. App. 9a. We have already explained in

the petition (at 11-13, 23-26) why the Attorney General’s

interpretive ruling is entirely reasonable and entitled to

deference. Nonetheless, we briefly address a couple of addi-

tional points raised by respondents.

Contrary to the arguments of the patient respondents

(Patient Br. in Opp. 9-10), this Court’s decisions in Alaska

Department of Environmental Conservation v. EPA, 540

U.S. 461 (2004); Barnhart v. Walton, 535 U.S. 212 (2002);

United States v. Mead Corp., 533 U.S. 218 (2001), and

Christensen v. Harris County, 529 U.S. 576 (2000), do not

justify decreased deference here. Each of those decisions

involved an agency interpretation of statute, rather than an

agency’s interpretation of its own regulation, which is at

issue here, and which is governed by the heightened

deference standard stated in Auer v. Robbins, 519 U.S. 452,

461 (1997), and Thomas Jefferson Univ. v. Shalala, 512 U.S.

504, 512 (1994). Such deference is especially warranted in

this case, because respondents do not challenge the validity

of the regulation itself, which since 1971 has governed the

determination of what prescriptions are valid under the

CSA."

Finally, respondents fail to cast any doubt on the rea-

sonableness of the Attorney General’s conclusion that

assisting in bringing about a patient’s suicide is not a

“legitimate medical purpose” for “treatment” within the

: Respo: dents contend (Or. Br. in Opp. 14 n.10; Patient Br. in Opp. 15-

16) that the phrase “legitimate medical use” in Section 1306.04(a) must

refer to state law because when the regulation was promulgated in 1971,

the CSA required the Attorney General to defer to state regulators with

respect to doctor registration. But Section 1306.04(a) does not address the

registration of physicians. Rather, it is a substantive regulation address-

ing what constitutes a valid prescription under 21 U.S.C. 829, and specify-

ing that distribution without a valid prescription violates the CSA. 21

C.F.R. 1306.04(a). As this Court’s decision in Moore reflects, 423 U.S. at

139-141, the relevant standard under the CSA for accepted medical prac-

tice has always been understood as a national one. See also p. 7, supra.

Moreover, contrary to Oregon’s assertion (Or. Br. in Opp. 14 n.10), a

doctor’s registration could always be revoked for violation of the CSA,

though, prior to 1984, this required that the doctor first be convicted of a

violation. See S. Rep. No. 225, 98th Cong., Ist Sess. 266 (1983).

10

meaning of that regulation. Respondents cannot deny that

the ethical guidelines of the American Medical Association

specifically provide that “[pJhysician assisted suicide is

fundamentally incompatible with the physician’s role as

healer,” a view that is shared by 49 of the 50 states. Ameri-

can Medical Association, Current Opinions of the Council of

Ethical and Judicial Affairs, E-2.211, Physician-Assisted

Suicide, <http://www.ama-assn.org/ama/pub/category/print/

8459.html> (last visited Jan. 24, 2005). Indeed, the legis-

lative history of the CSA demonstrates that Congress itself

regarded the use of controlled substances to commit suicide

as a serious problem of drug abuse. See Pet. 23-24 (citing

H.R. Rep. No. 1444, 91st Cong., 2d Sess. Pt. 1 (1970)).

In short, without the court of appeals’ fundamentally

flawed reliance on clear statement rules and a presumption

against preemption that have no application here under

decisions of this Court and other courts of appeals, the court

of appeals’ holding cannot survive scrutiny.

* * * * *

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

PAUL D. CLEMENT

Acting Solicitor General

FEBRUARY 2005