Amicus Curiae Brief — Gonzales v. Oregon

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No. 04-623

IN THE

Supreme Court of the United States

ALBERTO R. GONZALES, ATTORNEY GENERAL, ET AL.,

Petitioners,

Vv.

STATE OF OREGON, ET AL.,

Respondents.

On Wnt of Certiorari to the

United States Court of Appeals for the Ninth Circuit

AMICUS BRIEF OF

AMERICAN CENTER FOR LAW AND JUSTICE

IN SUPPORT OF PETITIONERS

THOMAS P. MONAGHAN JAY ALAN SEKULOW

CHARLES E. RICE Counsel of Record

CENTER FOR LAW & COLBY M. MAY

JUSTICE INTERNATIONAL JAMES M. HENDERSON, SR.

6375 New Hope Road WALTER M. WEBER

New Hope, KY 40052 AMERICAN CENTER FOR

(502) 549-5454 LAW & JUSTICE

201 Maryland Avenue, N.E.

Washington, DC 20002

(202) 546-8890

Attorneys for Amicus Curiae

TABLE OF AUTHORITIES

INTEREST OF AMICUS

SUMMARY OF THE ARGUMENT

B. Oregon’s Lack of Standing

. Oregon’s 4 ttack on the Constitutional Basis

for the CSA Cannot Serve as an Alternate

Grounds for Affirming the Judgment.

A. Pertinence of Commerce Clause Issue

B. Validity of CSA and Ashcroft Directive

CONCLUSION

ii

TABLE OF AUTHORITIES

Page

CASES

Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez,

458 USB. S5B CUED . oe coc vvesveenssectasseanenee 5

Bowen v. Public Agencies Opposed to Social Security,

S77 UB. SE CIGD . ooo cucvecteeneeeuenyeeeneen 6

Diamond v. Charles, 476 U.S. 54 (1985) ............45. 3

Maine v. Taylor, 477 U.S. 131 (1986) ..............4.. 5

Massachusetts v. Mellon, 262 U.S. 447 (1923)..... 1, 4, 5, 6

Minor v. United States, 396 U.S. 87 (1969) vseseueeunel 9

Oregon v. Ashcroft, 192 F. Supp. 2d 1077

os } Pee 3,5

Oregon v. Ashcroft, 368 F.3d 1118 (9 Cir. 2004) ...... 3,7

Perez v. United States, 402 U.S. 146 (1971)........... 2,8

Reina v. United States, 364 U.S. 507 (1960) ........... 10

Solid Waste Agency of Northern Cook County v.

Army Corps of Engineers, 531 U.S. 159 (2001) ........ 7

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ...... 5

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

United States v. Lopez, 514 U.S. 549 (1995) ............ 7

CONSTITUTIONAL PROVISIONS

AND STATUTES

U.S. Const. art. I, § 8, cl.3 20.2... ..00 eee e. 2, 6, 7, 9, 10

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INTEREST OF AMICUS'

The American Center for Law and Justice (ACLJ) is a public

interest law frm,~ international in scope, committed to insuring

the ongoing viability of constitutional freedoms in accordance

with principles of justice. The Chief Counsel for the ACLJ has

presented oral argument eleven times before the Supreme Court

of the United States. ACLJ attorneys have participated as

counsel of record for parties and for amici curiae in numerous

cases before state and federal appellate courts, including this

Court.

The ACLJ supports the U.S. Department of Justice in its

efforts to bar the use of federally controlled substances to

perpetrate intentional acts of assisted suicide. The ACLJ

likewise opposes the Ninth Circuit’s holding that the federal

government must surrender the uniform enforcement of drug

laws to the misguided, suicide-endorsing laws of a particular

State.

SUMMARY OF THE ARGUMENT

1. The respondent state of Oregon lacks standing to

challenge the Ashcroft Directive. Under Massachusetts v.

Mellon, 262 U.S. 447 (1923), it is insufficient under Article III

for a state baldly to assert that federal action usurps local powers

reserved to the states.

Mellon \ikewise bars a state from suing the federal

‘The parties in this case have consented to the filing of this brief. Copies

of the consent letters are being filed herewith. No counsel for any party

authored this brief in whole or in part. No person or entity aside from the

ACLJ, its members, or its counsel made a monetary contribution to the

preparation or submission of this brief.

>The ACLJ has no parent corporation, and no publicly held company owns

10% or more of its stock.

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government by invoking parens patriae standing on behalf of its

citizens. Hence, should this Court reverse the Ninth Circuit on

the merits, it should also hold that Oregon lacks standing to

participate in further proceedings on remand.

2. Oregon claimed below that Congress lacks power under

the Commerce Clause to regulate the activities governed by the

Ashcroft Directive, and so the federal Controlled Substances Act

(CSA) is unconstitutional, to the extent that it authorized

Attorney General Ashcroft to issue that directive. Before this

Court, Oregon contends that concern over these same Commerce

Clause limitations justifies a narrow construction of the CSA,

one that would render the Ashcroft Directive statutorily

unauthorized. Oregon’s Commerce Clause argument, however,

is wholly meritless. The CSA lawfully regulates controlled

substances as a class, and therefore the intrastate nature of

particular instances of conduct is irrelevant. Perez v. United

States, 402 U.S. 146 (1971). Oregon’s attempt to raise an “as

applied” C»mmerce Clause challenge must therefore fail.

Oregon blurs the distinction between federal regulation of

specific acts of conduct with an interstate nexus (as with the

Hobbs Act) and federal regulation of a class of acts that

Congress has found categorically to be within or to affect

interstate commerce (as with the CSA). To the extent Oregon’s

claim is simply a facial challenge to the CSA, it fails under this

Court’s precedents.

This Court should reverse the judgment of the Ninth Circuit.

ARGUMENT

I. Oregon Lacks Standing to Bring this Suit.

The state of Oregon, a respondent here, lacks standing in this

case. This matter is significant because, should the petitioners

prevail in this Court, the case will be remanded for further

proceedings.

A. Background

Three distinct sets of parties challenged the Ashcroft directive

in district court: Oregon (plaintiff below); medical practitioners

(intervenors below); and patients (intervenors below). All are

respondents in this Court.

Petitioners:early on moved to dismiss Oregon from the case

for lack of standing. See Oregon v. Ashcroft, 192 F. Supp. 2d

1077, 1087 (D. Ore. 2002). The district court denied this

motion. Viewing the Attorney General’s directive as an

intrusion on Oregon’s “sovereign and legitimate interest in the

continued enforceability of its own statutes,” the district court

ruled that Oregon has standing to challenge that directive. /d.

The Ninth Circuit did not endorse that holding. Instead, the

court held only that the respondent health care practitioners have

standing. Oregon v. Ashcroft, 368 F.3d 1118, 1121 (9" Cir.

2004). The court of appeals did not decide whether the other

plaintiffs -- including respondent Oregon -- also have standing.

Id. at 1121 n.2.° Tellingly, while the Ninth Circuit suggested

that the respondent patients might also have standing, id., the

court made no effort to endorse Oregon’s claim of standing, id.

B. Oregon’s Lack of Standing

The Attorney General's directive does not infringe upon any

>The Ninth Circuit invalidated the Ashcroft directive. Given this ultimate

holding of invalidity -- which, if left intact, would effectively end the

litigation -- it was unnecessary for the Ninth Circuit to decide the standing

of the other challengers. Should this Court reverse the Ninth Circuit's

judgment on the merits, there will be additional proceedings on remand. In

such a case, whether Oregon enjoys party status will indeed be a matter of

consequence. The remaining respondents would presumably still be able to

challenge the Ashcroft Directive as intervenors, assuming that they in fact

have Article III standing. Diamond v. Charles, 476 U.S. 54, 68 (1985). But

Oregon itself could no longer litigate this case.

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sovereign interest of Oregon. The Attorney General’s actions

raise no question concerning either the constitutionality or the

enforceability of Oregon’s assisted suicide statute, the so-called

Death With Dignity Act (DWDA). The DWDA itself is not

even at issue; only the availability of certain means, i.e., using

federally controlled substances, to accomplish the suicides

authorized by the DWDA, is at stake. Indeed, Oregon concedes

as much. See Brief for Respondent State of Oregon in

Opposition (“Ore. Opp.”) at 9 n.7 (“petitioner [Attorney

General] does not suggest that the DWDA is invalid. He asserts

only that his authority over controlled substances allows him to

prevent their use for purposes authorized by the Oregon law”);

id. at 10 (“At most, this case is about the means those physicians

can use”); Reply Brief for the Petitioners at 5 (concurring with

Oregon’s concession).

Under these circumstances, Oregon plainly lacks Article III

standing. Massachusetts v. Mellon, 262 U.S. 447, 480-86

(1923). As in Mellon, Oregon “complains that the act in

question invades the local concerns of the State, and is a

usurpation of power, viz.: the power of local self government

reserved to the States.” Jd. at 480. But as in Mellon, “the

powers of the State are not invaded,” id. (emphasis added).

Oregon’s DWDA remains valid, and the Ashcroft Directive

imposes no new obligation whatsoever upon the state. All the

directive does is to narrow the range of means legally available

to commit suicide under the DWDA.

What, then, is the nature of the right the State here asserted

and how is it affected by this [directive]? Reduced to its

simplest terms, it is alleged that the [directive] constitutes an

attempt to [regulate] outside the powers granted [by] Congress

and [by] the Constitution and within the field of local powers

exclusively [or presumptively] reserved to the States. ...

But what burden is imposed upon the States... ? Certainly

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there is none, unless it be the burden [which] falls upon their

inhabitants .... Nor does the [directive] require the States to

do or to yield anything.

Id. at 482.

The only injury, if there is any, occasioned by the Attorney

General’s directive is to those who desire to use or administer

Schedule I] substances contrary to federal drug law. Thus, at

best, Oregon’s interest may be characterized as a parens patriae

interest on behalf of those persons. On this thecry, as well,

Mellon is dispositive:

It cannot be conceded that a State, as parens patriae, may

institute judicial proceedings to protect citizens of the United

States from the operation of the statutes thereof. While the

State, under some circumstances, may sue in that capacity for

the protection of its citizens . . . it is no part of its duty or

power to enforce their rights in respect of their relations with

the Federal Government. In that field it is the United States,

and not the State, which represents them as parens patriae,

when such representation becomes appropriate; and to the

former, and not to the latter, they must look for such

protective measures as flow from that status.

Id. at 485-86 (citation omitted). Accord South Carolina v.

Katzenbach, 383 U.S. 301, 323-24 (1966); Alfred L. Snapp &

Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982).*

“The district court relied upon two of this Court’s cases for its holding that

Oregon has standing. See 192 F. Supp. 2d at 1087. Neither is applicable

here.

The first case, Maine v. Taylor, 477 U.S. 131 (1986), involved the

constitutionality of a Maine statute; this Court held that Maine had standing

to intervene to defend its own law. 477 U.S. at 133, 137. Here, by contrast,

(continued...)

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If Oregon were deemed to have standing in this case, then a

vast number of federal statutes or agency actions would be

subject to challenge by states. Countless federal restrictions

forbid private parties from engaging in conduct that would

otherwise be permissible under state law. For example, federal

laws governing drug labeling, food packaging, the environment,

securities transactions, and labor relations all impose

requirements beyond what is required under state law. Plainly,

private citizens affected by such restrictions can challenge them.

But the lesson of Mellon is that a state cannot do so, either on its

own behalf or on behalf of its citizens, under the theory that the

federal government has disrupted its sovereignty. If such federal

regulations were deemed interference with “a state’s sovereign

interest in enforcing its laws” cognizable under Article II, then

state attorneys general would be free to bring suit against any and

all federal laws, regulations, or executive actions that impose

additional requirements beyond those set by state law. If so, then

a fortiori a state could sue whenever a federal statute preempted

any state law.

This is not what Article III permits. Oregon lacks standing.

Il. Oregon’s Attack on the Constitutional Basis for the

CSA Cannot Serve as an Alternate Grounds for

Affirming the Judgment.

A. Pertinence of Commerce Clause Issue

In the proceedings below, Oregon claimed that the Commerce

Clause does not empower Congress to regulate controlled

‘(...continued)

the constitutionality of Oregon’s DWDA is not at issue. In the second case,

Bowen v. Public Agencies Opposed to Social Security, 477 U.S. 41 (1986),

a federal statute forbade states from withdrawing state employees from the

Social Security system, id. at 48. Here, there is no federal interference with

state employment contracts, or any federal compulsion of states at all.

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substances in the case of prescriptions for suicide. See, e.g.,

Appellee’s Brief of the State of Oregon at 63-69; Ore. Opp. at 5

n.6. The Ninth Circuit did not reach this argument. See 368

F.3d at 1125. Oregon did not renew this argument in its Brief in

Opposition. See Ore. Opp. at 10 (“only questions” presented are

statutory interpretation issues).

Oregon nevertheless continues to argue, in support of a

narrow construction of the federal Controlled Substances Act

(CSA), that the CSA “pushes the boundaries of Congressional

power,” Ore. Opp. at 17 (citing Solid Waste Agency of Northern

Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001),

a case that invoked Commerce Ciause concerns in support of a

narrow statutory construction). Thus, the Commerce Clause

issue still lurks in the backdrop of this case. It is therefore

worthwhile to demonstrate how truly meritless Oregon’s

Commerce Clause challenge is.

B. Validity of CSA and Ashcroft Directive Under

Commerce Clause

While Oregon may seek to portray this case as raising a

modest “as applied” challenge, it is no such thing. To embrace

Oregon’s argument would be to strike the CSA on its face,

throughout the nation.

Federal legislation under the Commerce Clause falls into two

broad categories. First, statutes can regulate activities on a case-

by-case basis, with proof of a connection to interstate commerce

necessary for any particular application. E.g., 18 U.S.C. § 1951

(federal robbery and extortion statute; contains element of

“affect[ing] commerce or the movement of any article or

commodity in commerce”). See generally United States v.

Lopez, 514 U.S. 549, 561-62 (1995). Second, statutes can

address a class of economic activities, such as pricing milk or

producing wheat, without any need to prove a nexus to interstate

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commerce in particular cases. E.g., Perez v. United States, 402

U.S. 146 (1971) (extortionate credit transactions). See generally

id. at 150-52.

The CSA falls into the second category. It regulates the

dispensing of controlled substances as a class, regardless of any

nexus to interstate commerce in individual situations. If the CSA

is valid generally, then it cannot be struck down on the ground

that, “as applied” in the case of prescribed suicides in Oregon,

Congress exceeded its constitutional power. As this Court has

explained: “Where the class of activities is regulated and that

class is within the reach of federal power, the courts have no

power to excise, as trivial, individual instances of the class.”

Perez, 402 U.S. at 154 (emphasis in original; internal quotation

marks and citation omitted).

Oregon therefore has it exactly wrong when it claims that the

Ashcroft Directive is unconstitutional because “(t]he effect of the

conduct regulated under Ashcroft’s interpretation of the CSA is

nothing if not ‘trivial.’” Appellee’s Brief of the State of Oregon

at 67. This Court’s decision in Perez directly forecloses that

argument.

What is more, Oregon’s argument makes little sense as a

matter of constitutional policy. Under Oregon’s theory,

Congress could not regulate any activity as a category. Congress

(or, perhaps, the Executive in an enforcement action), instead,

would be required to prove that each and every good, service, or

activity sought to be regulated federally itself satisfied this novel

constitutional jurisdictional requirement. Oregon thus would

obliterate the longstanding distinction between federal statutes

that have specific jurisdictional proof requirements (e.g., a

firearm that has moved in interstate commerce) and federal

statutes that do not (e.g., extortionate credit transactions), see,

e.g., Perez, 402 U.S. at 152 (quoting United States v. Darby, 312

U.S. 100, 120-21 (1941)), because none of the latter would be

constitutional.

The limitation that this theory would impose on federal

regulatory power is breathtaking. Consider just the universe of

controlled substances: Under Oregon’s view, Congress could

not regulate a controlled substance -- take methamphetamine as

an example -- that was manufactured, distributed, and used

entirely intrastate, because there would be no proof of an

interstate nexus. It is no understatement to say that this theory

would hobble, if not cripple, federal narcotics enforcement

efforts in the case of, perhaps, most controlled substances,

certainly any controlled substance that could be grown or

manufactured in this country. Given the nation’s commitment to

protect the public against the manifold dangers caused by the use

of and trafficking in controlled substances, Oregon’s theory has

little to commend it -- except as a means of reducing the number

of federal inmates.

In short, for Oregon to prevail on its Commerce Clause

argument, the CSA would have to be invalid on its face, which

would strike the statute down in all its applications, across the

nation. This conclusion follows logically from the nature of

Oregon’s challenge. The power of Congress under the

Commerce Clause does not hinge on the lawfulness of the

activity in question under state law. Therefore, if it exceeds the

power of Congress to regulate the prescription of drugs for

suicide in Oregon where that activity is lawful, then it similarly

exceeds the power of Congress in all 49 other states where that

practice is unlawful.’ But federal control of narcotics is

constitutionally valid under the Commerce Clause, as this Court

as long held. See Minor v. United States, 396 U.S. 87, 98 n.13

‘Likewise, if the prescription of drugs for suicide is beyond federal

legislative reach because it is supposedly wholly unrelated to drug

trafficking, then so is the prescription of drugs for legitimate medical

purposes, which is arguably just as unrelated to illegal trafficking.

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(1969); Reina v. United States, 364 U.S. 507, 511 (1960) (and

cases cited). Hence, Oregon’s Commerce Clause challenge must

_be rejected. For the same reason, there is no need here for

recourse to the doctrine of constitutional avoidance.

CONCLUSION

This Court should reverse the judgment of the Ninth Circuit.

Respectfully submitted,

Thomas P. Monaghan Jay Alan Sekulow

Charles E. Rice Counsel of Record

Center for Law and Justice Colby M. May

International James M. Henderson, Sr.

6375 New Hope Road Walter M. Weber

New Hope, KY 40052 American Center for Law

(502) 549-5454 and Justice

201 Maryland Ave., NE

Washington, DC 20002

(202) 546-8890

Attorneys for Amicus Curiae

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