Amicus Curiae Brief — Gonzales v. Oregon

m3 | Supreme WT US.

x

JUL 18 2005

No. 04-623 OFFICE OF THE CLERK

IN THE

Supreme Court of Gnited States

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

Petitioners,

Vv.

STATE OF OREGON, ET AL..,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

BRIEF FOR THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

MARK K. MOLLER PAMELA HARRIS

THE CATO INSTITUTE (Counsel of Record)

1000 Massachusetts Ave..N.W. GARRETT W. WOTKYNS

Washington, D.C. 20001 ARTHUR W.S. DUFF

(202) 842-0200 LAURA DE JAAGER*

O”’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

*Admitted in Illinois only

Counsel for Amicus Curiae

el

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ..0....cccccccccecoceccscscsescecsees l

SUMMARY OF ARGUMENT. ..........ccccccccccescececsceserececscesees l

ETSI See eC ee 5

I. An Administrative Interpretation Of Federal

Commerce Clause Authority Over Local

Conduct Is Not Entitled To Deference Under

This Court’s Federalism Precedents..................c.c00+«. 6

A. Localism Is An Important Component Of

The American System Of Dual

REAR eACE eer S 6

B. Agency Interpretations Of The Scope Of

Federal Commerce Power Deserve No

ERE SRI S211 ne CE ea eR 9

1. Agencies have an inferior democratic

SITIO ssesieetceclbdhhnn irinietiitisinasti ines aie iat 9

2. Where agency decisionmaking risks

conflict with a state’s democratically-

expressed preferences about regulation

within the scope of its historic police

powers, agency decisionmaking must

at a minimum accord with this Court’s

preference for decisional minimalism. ........ 12

3. Agency interpretations of the scope of

their own regulatory jurisdiction are

especially suspect where an agency

interprets an ambiguous statute to

support a novel expansion of federal

rulemaking jurisdiction with enormous

SOCIal CONSEQUENCES. ..............ceccecserecesseserere 17

li

TABLE OF CONTENTS

(continued)

Page

II. The Ashcroft Directive Fails Scrutiny Under

the Necessary and Proper Clause. .............:sseeee 21

COIN LIUIIIOIN wxccceceseeccescesescssesscionssiussssnnunnisinsnnnnannnnnnnn 30

TABLE OF AUTHORITIES

Page(s)

CASES

Barsky v. Bd. of Regents,

SEE 26

Blakely v. Washington,

a 3

Boy Scouts of Am. v. Dale,

EE 4

Chevron U.S.A., Inc. v. Natural Res. Def. Council,

EE 9

Colorado Republican Fed. Campaign Comm. v. Fed.

Election Comm'n,

ee 13

Cruzan v. Director, Missouri Dep't of Health,

Ee 18, 19

Equality Found. v. City of Cincinnati,

Nos. 94-3855, 94-3973, 94-4280,

1998 U.S. App. LEXIS 1765 (6th Cir. Feb. 5, 1998).......20

FDA v. Brown & Williamson Tobacco Corp.,

I serena 18

Gonzales v. Raich,

a passim

INS v. Chadha,

re 27

Katzenbach v. McClung,

I eae 21

Kent v. Dulles,

EE Ee 18

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Linder v. United States,

Se es SP icintncccnccnencennniincsamsiiittsinainceiiiiainuaimaiai 24, 26

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819)...............:cccscecceeeeeeeees passim

New York v. United States,

es ee ictiicitenccnintnncsnninecatinatationel 26, 28, 29

Oregon v. Ashcroft,

Oe 11,25

Printz v. United States,

Se Ck CN ncrrcincinistnnicinpeiuninansinemsiiccansiemmiaitl 27, 28

Rodgers v. Fed. Trade Comm'n,

er 26

Sabri v. United States,

ae Ha Ce cerncicienmnncsnnininineiiniimee 22, 23

Solid Waste Agency v. United States Army Corps of Eng'rs,

ear een 3, 10

New State Ice Co. v. Liebmann,

EF TEs SE CI csinecrsinrserccinencntenecntsinisiiiniesiiiiidigiiieiliniaasiiiall 4

United States v. Dewitt,

Fs Cee i crrcecctnsentncticnenicamisittninningins 21

United States v. Lopez,

FO es ee irernrescinnndinnnsinennitupatieniainiinmaiiisasian 5

United States v. Morrison,

hs ee cccinicccsinantaransmieninnntnniaiinasiaimenniinitamaaiaiats 2

United States v. Oakland Cannabis Buyers’ Coop.,

Te 8, 20

United States v. Salerno,

ee 13

v

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Virginia, :

i ee, ERO Se PEE 9,13

Vacco v. Quill,

EK 20, 29

Washington v. G. q

SE ii 2, 19, 29

CONSTITUTIONAL PROVISIONS

U.S. Const. aumomd. FIX ........ccscccsccessceeseecesesoeesoeeoeeees...... 28

eh ne ee ee a 17

Oe a iat | i 28

STATUTES AND REGULATIONS

Controlled Substances Act, 21 U.S.C. § 801 ef seg. .............. 2

Fe CI ticinstisitiesics nits a ee passim

ap ears ei iiininisesinenniicinisdimmicinaiaaieien ste nea 25

ae ne i iciithnisinindinsinnnisiiaienis cinta ete passim

I ienicitisininiitnticnetetec tn ee 11

ae ne Cintra ites ee 11,24

i | TR A ee LE, 14

Dispensing of Controlled Substances to Assist Suicide,

66 Fed. Reg. 56,607 (Nov. 9, 2001)... 24, 27, 28

OTHER AUTHORITIES

Lynn A. Baker & Ernest A. Y

Siete

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Sam Bagenstos, Commerce Clause Doctrine and

Practicalities, http://www.scotusblog.com/

movabletype/archives/2005/06/commerce_clause.htm]

IID TE TE corncnecetriicisinstailindananeatnditeatltinbeiainetaaainnds 11

Dan T. Coenen, The Rehnquist Court, Structural Due

Process, and Semisubstantive Constitutional Review,

ee 18

The Federalist (Clinton Rossiter ed., 1961)...............c-000 6,7

James G. Hodge, Jr., The Role of Federalism and Public

Health Law, 12 J.L. & Health 309 (1997) ............cccccecceeees 7

Lawrence Lessig, Translating Federalism: United

Szates v. Lopez, 1995 Sup. Ct. Rev. 125 (1995)............... 22

Michael W. McConnell, Federalism: Evaluating the

Founders’ Design, 54 U. Chi. L. Rev. 1484 (1987).......7, 8

Andrzej Rapaczynski, From Sovereignty to Process:

The Jurisprudence of Federalism After Garcia, 1985

a, Ge. FRE, BI ccteemscesnceremscsnninsteemienactntinimamatonees 8

Cass R. Sunstein, Foreword: Leaving Things Undecided,

ee, Ce: Ca Go ensttnrctcrnnicrrsntnntenentinninnis 4,13

Charles M. Tiebout, A Pure Theory of Local Expenditures,

RE Be ee a iereetenseiccrceesniitnniiniiiniinnsingess 7

Alexis de Tocqueville, Democracy in America 181 (Henry

I Fi enesccennsianitanicnnaiianinisintintiaiiimses 6

Edward L. Rubin & Malcolm Feeley, Federalism: Some

Notes on a National Neurosis, 41 UCLA L. Rev. 903

Emest A. Young, Deference to Whom?,

http://www.scotusblog.com/movabletype/archives/2005/0

6/deference_to_wh.html (June 6, 2005).................000 11-12

eS

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE'

/ The Cato Institute was established in 1977 as a non-

partisan public policy research foundation decided to

advancing the principles of individual liberty, free markets,

and limited government. Cato’s Center for Constitutional

Studies was established in 1989 to help restore the principles

of limited constitutional government, especially the idea that

the U.S. Constitution establishes a government of delegated,

enumerated, and thus limited powers. Toward that end, the

Institute and the Center undertake a wide range of publications

and programs, including, notably, publication of the Cato

Supreme Court Review. The instant case raises squarely the

question of the limits of the federal government’s power under

the doctrine of enumerated powers and is thus of central

interest to the Cato Institute and its Center for Constitutional

Studies

SUMMARY OF ARGUMENT

of professional medical judgment - an area of fessional

regulation to which “States lay claim by right pt or eomnapenr

expertise.” United States v. Lopez, 514 U.S. 549, 583 (1995)

(Kennedy and O’Connor, JJ., concurring). Here, an unelected

regulatory agent of the executive branch of the federal

government has attempted to void, through administrative

the amicus, its members, and counsel made a monetary contribution

Preparation and submission of this brief. —

2

action, not one but two ballot referenda duly conducted by the

citizens of a sovereign state who sought to secure for

themselves the right to obtain medical advice and assistance at

the end of life. The two referenda at issue, enshrined in

Oregon’s “Death With Dignity Act,” are part of an intense,

morally charged debate as to which there is no national

consensus, as is evidenced by the Court’s several opinions in

Washington v. Glucksberg, 521 U.S. 702 (1997). Oregon’s

law may be unorthodox, and even unique, but it has twice

been endorsed by substantial majorities of Oregon voters.

Because the administrative decision at issue (known as the

“Ashcroft Directive”) purports to interpret a federal statute

(the Controlled Substances Act, 21 U.S.C. § 801 ef seg.

(“CSA”)) and related regulations that are premised on

Congress’ power under the Commerce Clause, the Court is

called upon in this case to articulate the principle that

distinguishes local from truly national concerns that are

legitimately subject to regulation by the federal government.

The Court’s recent decisions define the precedential terminal

points of the spectrum, with Lopez and United States v.

Morrison, 529 U.S. 598 (2000), providing examples of local

issues not properly subject to federal regulation, and Gonzales

v. Raich, 125 S. Ct. 2195 (2005), providing an example of an

issue the Court considers to be properly within the federal

commerce power.

But as the multiplicity of opinions in Raich makes clear,

defining where Congress’ Commerce power ends and a state’s

role as primary expositor of social policy begins is a

controversial inquiry, the relevant considerations for which

this Court should identify with greater clarity. This concern is

especially pressing here, since the expansive understanding of

the commerce power on which the Ashcroft Directive is

implicitly premised places in historic peril the very “notion of

enumerated powers — a structural principle that is as much a

part of the Constitution as the Tenth Amendment’s explicit

textual command” that powers not delegated to the federal

3

government are reserved to the states. Raich, 125 S. Ct. at

2226 (O’Connor and Thomas, JJ., and Rehnquist, C_J.,

dissenting).

That peril, while real, is nonetheless easy to avoid in this

case. While amicus does not believe that the Court’s current

analysis of the commerce power accords with the

Constitution’s text, structure, or original meaning, to the

extent that this Court is committed to following existing

precedents, those precedents do make this case an easy call.

First, the Court’s cases reflect a constitutional preference

for democratically pedigreed judgments about the scope of

what is national and what is local. Arguably, the Court’s

preference for democratically pedigreed balancing of national

and local interests won the day in Raich, which suggested that

Congress is the preferred expositor of what is local and

national when Congress decides to “comprehensively”

regulate an item that travels in interstate commerce. Even

assuming, arguendo, that such deference was constitutionally

proper, there is no basis for extending similar deference to an

administrative agency’s interpretation of the scope of federal

commerce power. Agencies lack the democratic pedigree of

Congress, to say nothing of the state referenda at issue. When

an agency acts to supplant or undermine the outcome of direct

democracy at the state level, as here, its judgment must be

categorically disfavored. Cf Solid Waste Agency v. United

States Army Corps of Eng'rs, 531 U.S. 159, 173 (2001)

(refusing to accord deference to administrative decision that is

contrary to unambiguous legislative text and imposing a

heightened standard of review where a federal administrative

interpretation would interfere with democratic decisions at the

state level).

Second, the Court’s recent constitutional jurisprudence

reflects a possible preference for narrow over broad judicial

decisions, perhaps because it is thought that narrow judicial

decisions “can be democracy-forcing, not only in the sense

4

that [they] leave[] issues open for democratic deliberation, but

also and more fundamentally in the sense that [they] promote[]

reason-giving and ensure[] that certain important decisions are

made by democratically accountable actors.” Cass R.

Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L.

Rev. 6, 7 (1996). Whatever the general merits of this

principle, amicus believes it is fully defensible as a governing

principle for decisionmaking by federal administrators,

especially when an administrative judgment purports to trump,

in whole or in part, the judgments of local decisionmakers

with both a superior democratic pedigree and a historic claim

to regulatory primacy.

And, finally, since the days of Justice Brandeis, at least,

numerous members of the Court have recognized a

constitutional preference for state over federal regulation,

based on the propensity for “a single courageous State [to]

serve as a laboratory . . . and try novel social and economic

experiments without risk to the rest of the country.” New

State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting). This latter concern is especially

relevant where, as here, (1) a state provides an escape hatch

for dissenters seeking relief from competing legal regimes,

and (2) does so in a fashion that the federal regulators

themselves recognize imposes no costs on the interstate

system. Indeed, it is in precisely this circumstance that

Brandeis’s laboratory justification for federalism is most

potent: the state’s heterodox policy decisions provide, at little

cost to anyone, a wealth of information about untried

competing policies that have been suppressed and silenced

elsewhere.

All of these considerations are fully consistent with the

outcomes of Lopez, Morrison, and Raich, and conclusively

counsel against the Ashcroft Directive. The decision of the

court below invalidating the Attorney General’s interpretation

should be affirmed.

5

ARGUMENT

The Court’s federalism decisions over the past decade —

particularly Lopez, Morrison, and Raich — reflect the Court’s

difficulty crafting a bright-line rule that determines when a

federal government of limited and enumerated powers may

decide controversial questions of social policy under

Congress’ power to regulate interstate commerce. But the

difficulty of identifying a bright-line rule by no means reduces

the importance of articulating relevant constitutional

considerations that take seriously the concepts, integral to our

constitutional order, of dual sovereignty and li.nited

government. The “federal balance is too essential a part of our

constitutional structure and plays too vital a role in securing

freedom” for this Court “to admit inability to intervene when

one or the other level of Government has tipped the scales too

far.” Lopez, 514 U.S. at 578 (Kennedy and O’Connor, JJ.,

concurring).

This Court’s precedents underscore, at a minimum, that

whatever deference is due to “comprehensive” /egislative

judgments about the scope of the commerce power under

Raich —administrative judgments do not deserve similar

deference. Viewed in light even of Raich’s counsel of

deference to democratic fact-finding about the scope of the

commerce power, the Ashcroft Directive exceeds any

plausible construction of permissible federal legislative

authority.

The Ashcroft Directive also fails Commerce Clause

scrutiny for a separate reason: It is neither “necessary” nor

“proper” to the exercise of any enumerated Article I federal

power, as those standards were articulated in McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316 (1819). As such, the Court

should hold the Directive without effect — and do so without

reference to any degree of “deference” putatively owed either

Congress or agency regulators under Raich.

6

I. AN ADMINISTRATIVE INTERPRETATION OF

FEDERAL COMMERCE CLAUSE AUTHORITY

OVER LOCAL CONDUCT IS NOT ENTITLED TO

DEFERENCE UNDER THIS COURT’S

FEDERALISM PRECEDENTS.

A. LOCALISM Is AN IMPORTANT COMPONENT OF THE

AMERICAN SYSTEM OF DUAL SOVEREIGNTY.

Tocqueville recognized during his travels in early America

that “the love and the habits of republican government in the

United States were engendered in the township and in the

provincial assemblies . . . [I]t is this same republican spirit, it

is these manners and customs of a free people, which are

engendered and nurtured in the different States, to be

afterwards applied to the country at large.” Alexis de

Tocqueville, Democracy in America 181 (Henry Reeve trans.,

1961).

Protecting local republican government from

encroachment by the central government is, of course, a

defining feature of the unique American constitutional

framework. As the authors of The Federalist explained, the

“powers delegated . . . to the federal government are few and

defined. Those which are to remain in the State governments

are numerous and indefinite [and] extend to all the objects,

which . . . concern the lives, liberties, and properties of the

people... .” The Federalist No. 45, at 292-93 (James

Madison) (Clinton Rossiter ed., 1961). Indeed, one of the

principal criticisms of the new Constitution was that “it would

tend to render the government of the Union too powerful, and

to enable it to absorb those residuary authorities, which it

might be judged proper to leave with the States for local

purposes.” The Federalist No. 17, at 118 (Alexander

Hamilton).

To this concern, the proponents of the Constitution offered

two basic rebuttals. First, because of state governments’

closer geographic proximity to their citizens, “the people of

7

each State would be apt to feel a stronger bias towards their

local governments than toward the government of the Union,”

with the result that the people generally will look to state

government as “the immediate and visible guardian of life and

property.” Id. at 119-20. Second, because of the regulatory

competition inherent in a system of dual sovereignty, “a

double security arises to the rights of the people. The different

governments will control each other, at the same time that

each will be controlled by itself.” The Federalist No. 51, at

323 (James Madison).

The second point is especially salient here: competition

between different local jurisdictions plays an important role in

protecting the welfare of ordinary Americans, just as

competition in the economy furthers overall general welfare.

“[S}maller units of government have an incentive, beyond the

mere political process, to adopt popular policies . . . Since

most people are taxpayers this means that there is a powerful

incentive for decentralized governments to make things better

for most people.” Michael W. McConnell, Federalism:

Evaluating the Founders’ Design, 54 U. Chi. L. Rev. 1484,

1498-99 (1987); cf Charles M. Tiebout, A Pure Theory of

Local Expenditures, 64 J. Pol. Econ. 416 (1956). In short, a

system that favors state over federal regulation brings to social

policy the same benefits that competition brings to economic

policy — by increasing options that better balance competing

interests. See James G. Hodge, Jr., The Role of Federalism

and Public Health Law, 12 J.L. & Health 309, 356 (1997)

(“The reality of the federal political process is that federal

legislation and regulation invariably represents a mediocre

compromise to the accomplishment of specific goals . . .

[w]hile . . . state governments are generally more responsive to

the needs of their citizenry”).

Pluralism among local sovereignties is also information-

forcing. The very purpose of the states’ role as laboratories of

social experimentation is to foster unorthodox ideas — even

ideas that may be anathema in other parts of the country — and

8

thereby inform the judgments of competing sovereignties,

state and local. Unorthodoxy may bring information to light

that reigning common wisdom has ignored. And it may

expose error — and hence promote consensus — far more

effectively than the imposition of an artificial consensus by

national fiat.”

The significance of states’ role as laboratories of social

experimentation — and its obvious import here, where Oregon

has launched a nationally unorthodox but locally popular

experiment in end-of-life decisionmaking — is underscored by

the number of times members of this Court have invoked the

concept to defend the right of the states to experiment free

from federal interference. See, e.g., Raich, 125 S. Ct. at 2234-

35 (O’Connor, J., Rehnquist, C.J., and Thomas, J., dissenting);

Blakely v. Washington, 542 U.S. 296 (2004) (Kennedy and

Breyer, JJ., dissenting); United States v. Oakland Cannabis

2 Indeed, the information-forcing component of federalism and its role

in promoting liberty go hand in hand, since the raw data that local

pluralism produces is the product of free individual choices between

competing legal regimes that might otherwise be suppressed. Put another

way, “[flederalism provides an additional level of freedom to individuals,

beyond that provided by specific guarantees of individual rights, by

conferring the freedom to choose from among various diverse regulatory

regimes the one that best suits the individual’s preferences.” Lynn A.

Baker & Emest A. Young, Federalism and the Double Standard, 51 Duke

L.J. 75, 138-39 (2001); see also McConnell, supra, at 1506 (“Given the

diversity of views about issues of morality, and the potential for [political]

oppression, it is natural that lovers of liberty would be inclined toward

decentralized decision making.”); Edward L. Rubin & Malcolm Feeley,

Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903,

912 (1994) (noting that the “point of federalism... is to allow normative

disagreement amongst the subordinate units so that different units can

subscribe to different value systems”); see also Andrzej Rapaczynski,

From Sovereignty to Process: The Jurisprudence of Federalism After

Garcia, 1985 Sup. Ct. Rev. 341, 400 (“The model of participatory

government [views] political activity not as instrumental toward achieving

a proportionate share in distribution of available resources, [but] rather as a

good in itself, something essentially implicated in the very concept of

human freedom.”).

9

Buyers’ Coop., 532 U.S. 483, 502 (2001) (Stevens, Souter,

and Ginsburg, JJ., concurring in the judgment); Boy Scouts of

Am. v. Dale, 530 U.S. 640, 664 (2000) (Stevens, Souter,

Ginsburg, Breyer, JJ., dissenting); United States v. Virginia,

518 U.S. 515, 600 (1996) (Scalia, J., dissentung).

B. AGENCY INTERPRETATIONS OF THE SCOPE OF

FEDERAL COMMERCE POWER DESERVE NO

DEFERENCE.

Despite the importance of localism in our constitutional

federal framework, Raich suggested that Congress deserves

deference when interpreting the scope of its commerce power

over local conduct within the province of a comprehensive

federal regulatory scheme. The Court in Raich reasoned that

(1) a representative body composed of different sectional

interests is best suited to identify what is national and what is

local within the framework of a comprehensive regulatory

scheme and that (2) this deference is most appropriate where

the legislative judgment identifying what is national and what

is local is evident on the face of a legislative enactment.

Whatever the merits of that argument, the rationale of Raich

does not apply in this case, when the federal judgment about

the scope of federal commerce power is made by an

administrative agency and is made in the course of

interpreting an ambiguous statutory enactment.

First, in various contexts, the Court’s decisions evidence

marked suspicion of administrative judgments that conflict

with accountable legislative judgments of Congress. The

Court’s most important decision involving deference to legal

interpretations of administrative agencies, for example, makes

clear that where a federal agency interprets a statute in a

manner contrary to the unambiguous text o. tne statute, the

Statutory text — because of its democratic provenance —

prevails. See Chevron U.S.A., Inc. v. Natural Res. Def.

Council, 467 U.S. 837, 842-43 (1984). More recently, the

10

Court held the administrative interpretations even of

ambiguous federal statutory text are subject to special scrutiny

when they impinge on state laws. In Solid Waste Agency v.

United States Army Corps of Engineers, the Court invalidated

a federal environmental regulation on the ground that it was

not supported by a “clear indication that Congress intended

that” regulation, noting that the need for a clear statement

from Congress “is heightened where the administrative

interpretation alters the federal-state framework by permitting

federal encroachment upon a traditional state power.” 531

US. at 173.

The logic of these and similar authorities is fully

applicable to Commerce Clause analysis under Raich in this

case. First, in Raich, the intent of Congress to impose a

“comprehensive” ban on marijuana distribution was evident

from the face of the comprehensive legislative enactment, a

fact the Court held counseled deference. Raich, 125 S. Ct. at

2204 (discussing treatment of marijuana under the CSA); id. at

2208 n.32 (noting that Congress’s detailed “findings regarding

the effects of intrastate drug activity on interstate commerce”

rendered claims that Congress had not specified its intent to

reach the conduct at issue with sufficient clarity “unfounded”).

Yet, here, as explained in detail by the court of appeals, the

parties, and other amici, the Attorney General’s (putative)

authority to regulate end-of-life medical decisionmaking is

hardly self-evident from the text and structure of the CSA.

The CSA was designed to address drug “abuse” — a word the

Act’s text, implementing regulations, and legislative history

pervasively conflate with the health effects of “addiction” or

“dependence,” an issue not implicated here. Cf Raich, 125 S.

Ct. at 2203-04 (observing that “(t]he main objectives of the

CSA were to conquer drug abuse and to control the legitimate

and illegitimate traffic in controlled substances,” and that the

term “abuse,” as used in the CSA schedules, is related to risks

of “severe psychological or physical dependence”). Nor does

the Act or its implementing regulations explicitly define the

1]

textual term invoked by the Directive — “legitimate medical

purpose” (21 C.F.R. § 1306.04) — to justify excluding drugs

used for assisted suicide from the universe of statutorily

permissible medical uses. Finally, the Act is designed to

empower the “principal health agency of the federal

government,” not the Attorney General, to make medical

decisions under the Act — an enforcement choice that is

animated, as the court of appeals rightly noted, by a concern

about the impropriety “of having federal officials determine

the appropriate method of the practice of medicine.” Oregon

v. Ashcroft, 368 F.3d 1118, 1128 (9th Cir. 2004) (quoting H.R.

Rep. No. 91-1444 (1970)); cf also 42 U.S.C. § 290bb-2a

(quoted in United States v. Moore, 423 U.S. 122, 144 (1975)).

Indeed, for these reasons Attorney General Ashcroft’s

predecessor, Janet Reno, refused to use her CSA enforcement

powers as a basis for regulating end-of-life medical

decisionmaking. Cf Ashcroft, 368 F.3d at 1123. Then-

Attorney General Reno observed in 1998 that the CSA was

not “intended to displace the states as the primary regulators

of the medical profession, or to override a state’s

determination as to what constitutes legitimate medical

practice.” Jd. (citations omitted). With respect to Oregon’s

Death With Dignity Act, she opined that “the CSA does not

authorize [the federal government] to prosecute, or to revoke

DEA registration of, a physician who has assisted in a suicide

in compliance with Oregon law.” Jd.

Second, Raich presumes that the job of balancing what is

national and what is local under a comprehensive legislative

scheme is best left to the body with the superior democratic

pedigree. See, eg., Sam Bagenstos, Commerce Clause

Doctrine and Practicalities, http://www.scotusblog.com/

movabletype/archives/2005/06/commerce_clause.html (June

6, 2005) (noting Raich may reflect a preference for assessment

of the “practical facts on the ground” by Congress instead of

courts); Emest A. Young, Deference to Whom?,

12

http://www.scotusblog.com/movabletype/archives/2005/06/de

ference to wh.html (June 6, 2005) (noting that Raich reflects

“arguments about comparative institutional competence

between courts and legislatures”). Here, the Attorney

General’s interpretation is in conflict with a clear and far more

democratically pedigreed judgment - that of the people of

Oregon. To be sure, state democratic processes are not always

entitled to deference — as where, for example, their judgment

conflicts with the Constitution or validly enacted legislative

enactments within the scope of Congress’ Article | powers.

But, in cases where, as here, states act within the province of

their traditional police power, and in conflict with a federal

administrative decree issued under an ambiguous federal

enactment, the sovereign democratic judgment of the state

deserves at least the same priority as the clear statement of

federal legislative will considered determinative in Raich.

Given the lack of any indication that Congress intended to

make the Attorney General America’s foremost regulator of

medical decisionmaking for the terminally ill, the Court

should take care to underscore that the Attorney General is not

entitled to any deference under the Commerce Clause when he

acts to expand federal legislative jurisdiction in a fashion that

supplants, or undermines, Oregon’s clear sovereign

The Court’s recent decisions have evidenced a preference

for “judicial minimalism”: i.e., a concern for protecting the

widest possible field for democratic decisionmaking against

incursions from the judicial apparatus of the government.

Amicus is skeptical of strong claims for judicial minimalism,

13

including its predicate assumption that majoritarian

decisionmaking is generally rational and benign. Nonetheless,

as suggested by some of this Court’s recent precedents, the

preference for decisional minimalism weighs especially

heavily against deference to agency determinations about the

scope of federal commerce power in this case.

Some c tat defend judicial —_ li as an

approach that promotes greater public participation in

democratic decisionmaking: “One of the major advantages of

minimalism is that it grants a certain latitude to other branches

of government by allowing the democratic process room to

adapt to future developments, to produce mutually

advantageous compromises, and to add new information and

perspectives to legal problems{.}” Sunstein, supra, at 19. This

“minimalist” approach arguably is reflected in such decisions

as United States v. Salerno, 481 U.S. 739, 745 (1987), where

the Court expressed greater reluctance to accept a facial

challenge to a statute than a narrower as-applied challenge;

United States v. Virginia, 518 U.S. 515, 533 n.7 (1996)

(citation omitted), where the Court decided an issue of major

national controversy — the admission of women to a

historically single-sex military college — while emphasizing

that it “address{ed] specifically and only an educational

opportunity recognized by the District Court and the Court of

Appeals as ‘unique’ . . . .”; and Colorado Republican Federal

Campaign Comm. v. Fed. Election Comm'n, 518 U.S. 604,

623-24 (1996), where the Court noted a “prudential reason for

this Court not to decide the broader question” presented by a

facial challenge to an election law.

To the extent the Court considers decisional minimalism a

compelling basis of decision for courts, minimalism should

certainly be the constitutionally preferred mode of decision

when administrative agencies either explicitly or, in this case,

implicitly interpret the scope of their own regulatory power

act without a strong democratic pedigree; worse, they lack the

14

constitutional authority that courts possess to engage in

judicial review of state judicial systems. Thus, agencies’

authority is especially insubstantial when they interpret the

scope of their own delegated commerce power in derogation

of express policies enacted through state democratic

processes. On this score, the Ashcroft Directive is particularly

objectionable, since it (1) cuts the widest conceivable berth for

agency action in a situation where the statute it purports to

enforce (the CSA) supplies scant textual justification for such

action and (2) purports to thwart multiple state democratic

referenda within the field of traditional state competence.

Furthermore, and more fundamentally still, principles of

decisional minimalism also should apply with equal force to

this Court’s decision in Gonzales v. Raich. If courts should

decide cases narrowly, then Raich itself must be read narrowly

rather than broadly, in order to preserve the widest possible

field for sovereign decisionmaking within the scope of states’

police powers. That, at a minimum, means that Raich should

be construed against extension to cases raising dissimilar facts.

Raich, of course, involved a very different set of facts

from this case. For example:

e In Raich, the Court was asked to distinguish what is

national from what is local in light of congressional

imposition of a comprehensive nationwide ban on a

particular controlled substance, marijuana. See, e.g.,

21 C.F.R. § 1308.11(c)(11), (d)(18)-(21) (classifying

substances including marijuana, heroin, and lysergic

acid as Schedule I substances); 21 U.S.C. § 812(b)(1)

(Schedule I substances have a high potential for

“abuse,” no “currently accepted medical use,” and

“lack of accepted safety for use”); id at § 829

(authorizing prescription only for Schedule II, Ill, IV,

and V drugs); Raich, 125 S. Ct. at 2211 (“The CSA

designates marijuana as contraband for any purpose”)

(emphasis in original). Here, by contrast, there is no

15

such ban: the substances in question are classified

under Schedule II and III of the Controlled Substances

Act, 21 U.S.C. § 812(b)(2), (6)(3). Under Schedule II

and III, a legal market for these substances is permitted

as a matter of federal law, contingent on the medical

context in which those substances are used. See, e.g.,

21 U.S.C. § 812(b)(2), (6)(3) (defining Schedule II and

III substances as those that have a “currently accepted

medical use in treatment”); id. § 829(a) (authorizing

dispensation of Schedule II drugs with “the written

prescription of a practitioner”); id. § 829(b)

(authorizing dispensation of Schedule III drugs with “a

written or oral prescription”).

In Raich, the Court confronted what it deemed a

compelling practical problem: namely, that replacing a

bright-line ban on m xrijuana with a conditional ban in

which use of the drug is legal or illegal depending on

the medical context of use (the necessary result of

deferring to California law at the federal level, as

respondents in Raich effectively urged) would

complicate enforcement of Schedule 1. See, e.g.,

Raich, 125 §S. Ct. at 2213 (the “notion that California

law has surgically excised a discrete activity that is

hermetically sealed off from the larger interstate

marijuana market is a dubious proposition”); id. at

2220 (Scalia, J., concurring) (suggesting federal

enforcement of a ban on interstate trafficking of

marijuana would be rendered “precarious” by

California’s Compassionate Use Act, since “medical”

marijuana is “never more than an instant from the

interstate market”). Here, that enforcement concern is

non-existent—since no bright-line ban is in place.

Instead, under the CSA, all enforcement decisions with

respect to Schedule II and III drugs turn on contextual

medical circumstances of use. See, e.g., 21 U.S.C. §

812(b)(2), (3) (defining Schedule II and III drugs as

16

drugs with “currently accepted” medical uses); id. at §

829(b) (authorizing dispensation of Schedule II drugs

when prescribed by a phy: ~ian). As a result, the

enforcement concerns raised in Raich are plainly not

applicable here. Oregon’s law does not alter the fact

that distinguishing illegal and legal uses as a matter of

federal law remains fact-specific.

In Raich, Congress was concerned that isolated lawful

use of the comprehensively banned substance,

marijuana, might affect the price of the substance that

moves in the illicit interstate market. Raich, 125 S. Ct.

at 2207 (“Congress had a rational basis for believing

that, when viewed in the aggregate, leaving

[marijuana] outside the regulatory scheme would have

a substantial influence on price and market

conditions”). That concern, again, reflected the nature

of the federal controls at issue in that case — which

imposed a comprehensive ban designed to make

purchase of the substance, marijuana, prohibitively

expensive. Here, however, there is no evidence that

Congress is concerned with making Schedule II or Ill

substances prohibitively expensive. To the contrary,

the plain text of Schedule II and III underscores that

Congress is concerned primarily that these substances

are used in accordance with medical judgment. See,

eg. 21 US.C. § 812(b)(1)-(3) (distinguishing

Schedule II and III drugs from Schedule I drugs based

on the existence of “currently accepted” medical uses

for these drugs); id. § 829(a) (treating Schedule II and

Ill drugs differently from Schedule I drugs by

authorizing dispensation of the former when made

pursuant to prescription).

Finally, as discussed above, in Raich the Court

considered what it deemed to be a clear statement by

Congress in favor of a total ban on Schedule |

17

controlled substances. Here, by contrast, the Court is

asked to consider an Article II officer’s interpretation

of his delegated authority under a patently unclear

legislative enactment.

In short, the regulatory setting considered here is very

different from that at issue in Raich. This case asks the Court

to permit a federal administrative officer to void multiple

statewide democratic referenda concerning an activity that

implicates no clearly expressed legislative policy and that

poses no risk of diversion, enforcement confusion, or price

effects for a comprehensively banned substance. At bottom,

the executive branch asks to impose its policy judgments

about end-of-life decisions on Oregon, supplanting the clearly

expressed judgments of that state’s citizens. And it does so

based on uncertain Article I legislative authorization. If there

is ever a case where “judiciai minimalism” in the

interpretation of precedent is called for, it is here: On the facts

of this case, the Court should explicitly hold that Raich is

inapplicable and further hold that, at a minimum, additional

legislative guidance is necessary before the federal commerce

power possibly can be construed, whether explicitly or, as

here, sub silentio, to authorize imposition of the federal policy

favored by a single executive officer, the Attorney General, on

Oregon’s electorate.

JISUICUON V ' UUS 5OCI LSCUUCTICES.

Finally, any deference due to administrative agencies’

interpretations of the scope of their own Commerce Clause

power is especially weak where, as here, the choice is morally

contentious and committed, by tradition and constitutional text

(US. Const. amend. X), to state police power. “[Ojne might

claim that courts, when interpreting statutes, should assume in

18

close cases that a decision with ‘enormous social

consequences’ . . . should be made by democratically elected

Members of Congress rather than by unelected agency

administrators.” FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 190 (2000) (Breyer, Stevens, Souter and

Ginsburg, JJ., dissenting) (citations omitted). And, indeed,

cases like Kent v. Dulles, 357 U.S. 116, 129 (1958), picture

the Court’s use of that very canon to “ensure that certain

decisions are made by Congress rather than the executive

branch” when “they involve constitutionally sensitive

domains” and threaten “to make rules interfering with [the]

exercise of basic human liberties.” Dan T. Coenen, The

Rehnquist Court, Structural Due Process, and Semisubstantive

Constitutional Review, 75 S. Cal. L. Rev. 1281, 1374 (2002)

(quoting Brown & Williamson, 529 U.S. at 190 (Breyer,

Stevens, Souter and Ginsburg, JJ., dissenting)); cf also Kent,

357 U.S. at 130 (narrowly construing grant of congressional

authority invoked by the Secretary of State in promulgating a

rule that prohibited the award of passports to Communist Party

members because “[w]e would be faced with important

constitutional questions were we to hold that Congress . . . had

given the Secretary authority to withhold passports to citizens

because of their beliefs or associations”).

Such concerns are also apt here. This Court’s cases

concerning the role of physicians in advising terminally ill

patients on end-of-life decisions make clear that, precisely

because of the controversial and unsettled nature of the issue,

politically accountable actors like individual state

governments should be permitted to experiment through the

democratic process. In Cruzan v. Director, Missouri Dep't of

Health, 497 U.S. 261 (1990), the Court granted certiorari to

decide whether the Constitution permits a state to impose a

heightened evidentiary standard for justifying withdrawal of

artificial hydration and nutrition from a comatose patient.

Various members of the Court described that question as

presenting “difficult and sensitive” and even “agonizing”

19

issues, id. at 292 (O’Connor, J., concurring), 292 (Scalia, J.,

concurring), but ultimately concluded that the Constitution

permitted a state to take that position — with the caveat that

that holding would not “prevent States from developing other

approaches for protecting an incompetent individual’s liberty

interest in refusing medical treatment.” Jd. at 292 (O’Connor,

J., concurring).

In Glucksberg, the Court granted certiorari to decide

whether a state has the power to prohibit actions that cause or

assist suicide. While noting that the states — and particularly

Oregon — were “currently engaged in serious, thoughtful

examinations of physician-assisted suicide and other similar

issues,” the Court nonetheless concluded that it was a

legitimate expression of the state political will to prohibit

assisted suicide. Glucksberg, 521 U.S. at 719. Members of

this Court took pains to point out, however, that a prohibition

on end-of-life medical advice, including assisted suicide, is

not the only permissible judgment a state might reach. As

Justice O’Connor observed, “[t]here is no reason to think the

democratic process will not strike the proper balance between

the interests of terminally ill, mentally competent individuals

who would seek to end their suffering and the State’s interests

in protecting those who might seek to end life mistakenly

under pressure.” Jd. at 737 (O’Connor, Ginsburg, and Breyer,

JJ., concurring) (citing, inter alia, New State Ice). And Justice

Stevens emphasized the importance of permitting the

“continuation of the vigorous debate about the ‘morality,

legality, and practicality of physician-assisted suicide’ in a

democratic society,” id. at 738 (Stevens, J., concurring),

particularly in view of the fact that there is a “specific

[constitutional] interest in making decisions about how to

confront an imminent death.” /d. at 745.

In Vacco v. Quill, as in Glucksberg, the Court granted

certiorari to decide whether a state has the power to prohibit or

limit assisted suicide. Again, members of this Court endorsed

the view that the propriety of physicians’ involvement in end-

20

of-life decisions, including assisted suicide, was a matter best

left to democratic debate at the state level. See 521 U.S. 793,

809 (1997) (O’Connor, Ginsburg, and Breyer, JJ., concurring)

(citing New State Ice). And again, Justice Stevens emphasized

that there is “room for further debate” about the constitutional

limits on suicide-assistance prohibitions. Jd. (Stevens, J.,

concurring).°

Cruzan, Glucksberg, and Vacco, then, each raised a highly

controversial question: whether the Constitution permits

states to place limits on the right of individuals to determine

the time and manner of their own deaths, and their associated

right to seek assistance in doing so. This question was

considered sufficiently debatable to warrant review by wmit of

certiorari. Each time, members of this Court concluded that

the state laws in question were permissible in part because of

the states’ role in the constitutional order as laboratories of

social experimentation. Yet it surely cannot be that if a state’s

power to prohibit end-of-life medical assistance is a close

constitutional question, justifiable largely on the ground that

states have the freedom to experiment with social policy, other

states such as Oregon may be legally required to make that

same political choice by an unelected federal administrator.

Cf, Equality Found. v. City of Cincinnati, Nos. 94-3855, 94-

3973, 94-4280, 1998 U.S. App. LEXIS 1765, at *4-5 (6th Cir.

Feb. 5, 1998) (Boggs, J., concurring in denial of reh’g en

banc) (noting that “{i]f in Romer [v. Evans] the Supreme Court

held that cities may choose to enact gay-right ordinances

without nullification by state constitutional amendment, it did

not hold that cities must choose to do so”); cf. also Brown &

Williamson, 529 U.S. at 190 (Breyer, Stevens, Souter and

>It is significant in the context of this case that three members of the

Court have separately emphasized the “importance of showing respect for

the sovereign States that comprise our Federal Union” when it comes to

reviewing state laws authorizing certain seriously ill individuals to use

otherwise illegal drugs. Oakland Cannabis, 532 U.S. at 502 (citing New

State Ice) (Stevens, Souter, and Ginsburg, JJ., concurring in the judgment).

21

Ginsburg, JJ., dissenting).

Il. THE ASHCROFT DIRECTIVE FAILS SCRUTINY

UNDER THE NECESSARY AND PROPER CLAUSE.

As Justice Scalia noted in his Raich concurrence,

“activities that substantially affect interstate commerce are not

themselves part of interstate commerce, and thus the power to

regulate them cannot come from the Commerce Clause alone.”

125 S. Ct at 2215-16 (Scalia, J., concurring). Federal

regulatory power over such activities comes from the

Necessary and Proper Clause and the Commerce Clause taken

together. Id.; cf also Katzenbach v. McClung, 379 U.S. 294

301-02 (1964). Justice Marshall in McCulloch v. Maryland,

17 US. (4 Wheat.) 316 (1819), articulated the test for

determining when congressional action in effectuation of an

enumerated power is permissible under the Necessary and

Proper Clause: “Let the end be iegitimate, let it be within the

scope of the constitution, and all means which are appropriate,

which are plainly adapted to that end, which are not

prohibited, but consist with the letter and spirit of the

constitution, are constitutional.” Jd.

, The Ashcroft Directive fails these tests. It is neither a

“necessary” nor a “proper” means for making effective the

CSA’s regulation of interstate commerce in controlled

substances.

1. To act in effectuation of an enumerated power under

the “necessity” prong of the Necessary and Proper Clause,

Congress must select a means that is “appropriate” and

“plainly adapted” to executing an enumerated power. Raich, ©

125 S. Ct. at 2219 (Scalia, J., concurring) (citation omitted).

Cf. also id. at 2231 (Thomas, J., dissenting); United States v.

Dewitt, 76 US. (9 Wall.) 41, 44 (1870) (finding ban on

intrastate sale of lighting oils not “appropriate and plainly

adapted means for carrying into execution” Congress’ taxing

power). A means is “plainly adapted” if there is an “obvious,”

22

“simple,” and “precise” connection between the means and the

constitutional ends. Sabri v. United States, 541 U.S. 600, 613

(2004) (Thomas, J., concurring) (citation omitted). These

requirements “are not merely hortatory.” Raich, 125 S. Ct. at

2219 (Scalia, J., concurring). Rather, they prevent claims of

“necessity” from being used as a “pretext . . . for the

accomplishment of objects not entrusted to the government.”

McCulloch, 17 U.S. (4 Wheat.) at 323; cf also Lawrence

Lessig, Translating Federalism: United States v. Lopez, 1995

Sup. Ct. Rev. 125, 202 (1995) (discussing McCulloch and

stating that “when Congress regulates according to the

Necessary and Proper Clause, either because of the textual

requirement of ‘propriety’ or because of the need to assure

that this clause not become the demise of Congress's limited

power, the Court should assure that the invocation of this

clause not be for improper ends”).

The Ashcroft Directive fails this “necessity” test. Amicus

assumes arguendo that the goal by which the “necessity” of

the Directive must be measured is defined by Schedule II and

Ill, which articulate the permissible uses of the regulated

substances at issue in this case and therefore the scope of

federal regulatory purpose at issue. See, e.g., Raich, 125 S. Ct.

at 2219 (Scalia, J., concurring) (assuming that the relevant

level of analysis under the Necessary and Proper Clause is the

purpose of the governing statutory scheme, in that case,

Schedule I, which aimed to “extinguish the interstate market”

in marijuana). Yet, as discussed in Part I, those classifications

do not purport to effectuate a comprehensive ban on subject

substances. Rather, the classifications are designed to further

a different goal: to ensure that the controlled substances, for

which an interstate market exists, are prescribed pursuant to

medical judgment. See, eg., 21 U.S.C. § 812(b)(1)-(3)

(distinguishing Schedule Ii and III drugs from Schedule |

drugs based on the fact that there are “currently accepted”

medical uses for the former); id. § 829(a) (authorizing

dispensation of Schedule II and III drugs according to a

Lom a

ONY: LPT eros

23

prescription). While the Ashcroft Directive presumes that a

federal role in defining medically legitimate uses is

“necessary” to effectuate this goal, there is no “obvious,”

simple” rationale for federal involvement in this way. Sabri

541 U.S. at 613 (Thomas, J., concurring).

At the outset, the federal government provides no evidence

that Oregon’s policy is incompatible with a chosen form of

federal regulation. In Raich, as discussed in Part I, Congress

chose to regulate a substance that traveled in interstate

commerce by comprehensively banning all uses of that

substance. The Court recognized that such a ban entailed

outlawing local uses of marijuana in all circumstances.

Otherwise, the integrity of a total bright-line ban on that

substance would have been in jeopardy. For example, placing

local uses of a comprehensively banned substance outside

Congress’ reach would, the Court assumed, create

enforcement problems that a bright line ban is designed to

obviate and, relatedly, would subvert the effort to drive the

substance from the market, a policy effectuated by making the

banned substance prohibitively expensive. See generally Part

1.B.2, supra.

Here, however, the chosen form of federal regulation is

pod different: no a bright-line ban on relevant controlled

substances 1s in place; instead, the scheme itself antici

that the Schedule II and III substances at issue here are ional in

some contexts and illegal in others, depending on medical

judgments about their use in given contexts. See, e.g., 21

U.S.C. § 812(b)(2), (3); id. § 829(a). Thus, maintaining the

integrity of the chosen form of regulation does not

“obviously” (Sabri, 541 U.S. at 613 (Thomas, J., concurring))

require a uniform federal judgment about the permissibility of

uses. For example, because variation in legality of the

substance, depending on context, is inherent to the regulatory

framework as enacted, it cannot be argued that allowing

Oregon to make its own decision about the scope of

permissible uses raises special enforcement problems that the

24

chosen form of regulation is designed to preclude. See Part

1.B.2, supra. Nor can it be argued that federal judgment is

necessary to maintain a prohibitively high price for a

comprehensively banned substance — since Schedule II and III

do not attempt to drive any covered substances from the

marketplace. 21 U.S.C. § 829(a).

To be sure, some might argue that there is a need for

executive branch intervention where states have abdicated

their responsibility to clarify the medically permissible uses of

Schedule II and III substances, thereby confusing enforcement

of the Act. But that is not the case here. To the contrary, the

will of Oregon is expressed with simple clarity — albeit in a

fashion objectionable to the current executive branch’s policy

preferences. Nor is there an “obvious” need for uniform

federal administrative standards in this case, given the

recognized benefits that state pluralism brings to an area of

medical regulation that is deeply (and morally) contentious.

To the contrary, if any understanding of states’ role is

“obvious,” given the Court’s longstanding articulation of the

structural underpinnings of federal power, it is that states are

the preferred regulators of local medical standards — and, at a

bare minimum, are presumptively favored as such in the

absence of a clear legislative statement to the contrary. Linder

v. United States, 268 U.S. 5, 18 (1925) (“Obviously, direct

control of medical practice in the States is beyond the power

of the Federal Government”).

Finally, the Ashcroft Directive itself concedes that the

Directive, by design, will have no cross-border effects

whatsoever. See Dispensing of Controlled Substances to

Assist Suicide, 66 Fed. Reg. 56,607, 56,608 (Nov. 9, 2001)

(stating the directive “makes no change in the current

standards and practices of the DEA in any State other than

Oregon”); cf. also 21 U.S.C. § 822(b); 21 C.F.R. § 1306.04.

When federal regulators themselves recognize that the effects

of federal intervention will be confined entirely to a single

state, any suggestion that the Ashcroft Directive is necessary

25

to effectively regulate the interstate distribution of Schedule II

and III drugs is completely unavailing, even under the most

generous nterpretations of this Court’s Commerce Clause

In the end, the Ashcroft Directive is a paradi

example of the kind of federal initiative that the test for

“necessity” announced by Chief Justice Marshall in

McCulloch v. Maryland is designed to combat. McCulloch,

17 U.S. (4 Wheat.) at 323 (Necessary and Proper Clause may

not be used as a “pretext . . . for the accomplishment of objects

not entrusted to the government”). Here, the existence of a

detailed federal regulatory scheme is used by the executive

branch as a pretext for supplanting a state policy (in favor of

choice in end-of-life decisionmaking) with a federal one

(motivated by opposition to such choice) — despite the fact that

the imposition of the preferred federal policy is wholly

unrelated to any salient administrative concern entailed by

management of the Controlled Substances Act. Whatever

Raich may mean, it cannot be interpreted to mean that agency

enforcement power over a comprehensive scheme of

regulations can serve as a cover for any tendentious assertion

of agency power to supplant state law, no matter how

unrelated it is to the administration of the regulatory scheme

enacted by Congress.

2. The means chosen by the federal government to

4

Further evidence suggesting that the Ashcroft Directive is not a

“plainly” adapted means of implementing the CSA is the determination of

Attorney General Ashcroft’s predecessor, Janet Reno, that federal law does

not authorize administrative actions like the Ashcroft Directive. Oregon v.

Ashcroft, 368 F.3d 1118, 1123 (9th Cir. 2004) (recounting that Attorney

General Reno explained in 1998 that the CSA was not “intended to

displace the states as the primary regulators of the medical profession, or to

override a state's determination as to what constitutes legitimate medical

practice and opined that “the CSA does not authorize [the federal

government} to prosecute, or to revoke DEA registration of, a physician

who has assisted in a suicide in compliance with Oregon law”).

26

effectuate a legitimate goal must not only be necessary to the

achievement of that goal, but they must also be “proper,” in

the sense that they cannot be otherwise inconsistent with “the

letter and spirit of the [C]onstitution.” Jd.; cf also Raich, 125

S. Ct. at 2231 (Thomas, J., dissenting).

a. As Justice Sc‘: noted in Raich, “[c]ases such as Printz

v. United States . . . and New York v. United States . . . affirm

that a law is not ‘proper for carrying into Execution the

Commerce Clause’ . . . ‘[wJhen [it] violates [a constitutional]

principle of state sovereignty.”” 125 S. Ct. at 2219 (Scalia, J.,

concurring) (quoting Printz v. United States, 521 U.S. 898,

923-24 (1997) and New York v. United States, 505 U.S. 144,

166 (1992)) (emphasis in text of opinion).

The Ashcroft Directive violates constitutional principles of

state sovereignty in at least three ways. First and most

obviously, it violates Oregon’s sovereign interest in regulating

professional medical conduct within its borders. Cf, e.g.,

Linder, 268 U.S. at 18 (“Obviously, direct control of medical

practice in the States is beyond the power of the Federal

Government”); Barsky v. Bd. of Regents, 347 U.S. 442, 449

(1954) (“It is elemental that a state has broad power to

establish and enforce standards of conduct within its borders

relative to the health of everyone there. It is a vital part of a

state’s police power”). Second, the Ashcroft Directive

purports to veto two state-wide democratic referenda - a

fundamentally sovereign act of self-government® — by the fiat

of a single, unelected federal bureaucrat acting outside the

deliberative process of Article I decisionmaking. If approved

here, that veto would not only shutter laboratories of state

civic experimentation long protected by this Court, but would

do so in a fashion wholly inconsistent with the explicit

27

(bicameralism and presentment) that discipline and check

novel new federal incursions into states’ sphere of sovereign

legislative decisionmaking. See, e.g., INS v. Chadha

919, 946-51 (1983). ath cee

pene on ahero8 Directive trenches on constitutional

principles of state sovereignty by “requiring” the Oregon State

Registrar to “administer or enforce a federal

program.” Printz, 521 U.S. at 935. Printz left no doubt that

“[t}he Federal Government may neither issue directives

requiring the States to address particular problems, nor

command the States’ officers, or those of their political

subdivisions, to administer or enforce a federal regulatory

program. Id. The Court emphasized that “[i]t matters not

whether policymaking is involved, and no case-by-case

weighing of the burdens or benefits is necessary; such

commands are fundamentally incompatible with our

constitutional system of dual sovereignty.” Jd.

The Ashcroft Directive runs afoul of these rules. The

Directive includes a provision entitled “Enforcement in

Oregon,” which notes that under Oregon statutory law, “an

attending physician who writes a prescription for medication

to end the life of a qualified patient must document the

medication prescribed.” 66 Fed. Reg. at 56,608 (citing 3 Or.

Rev. Stat. § 127.855). The Ashcroft Directive then further

notes that Oregon’s Health Division require any health

Death with Dignity Act to file a copy of the dispensing record

with the Health Division. Id. These records, the Ashcroft

to determine whether those holding DEA registrations who

assist suicides in accordance with Oregon law are prescribing

federally controlled substances for that purpose in violation of

the CSA as construed by this Memorandum[.}” Id. The

Ashcroft Directive then conscripts the Oregon State Registrar

~ in defiance, of course, of the will of the majority of

28

Oregonians who twice endorsed Oregon’s Death With Dignity

Act — to either furnish the prescription dispensing records

directly to the DEA or make them available to the DEA for

inspection so that “appropriate administrative action” may be

taken against offending physicians. Jd The Ashcroft

Directive, therefore, enrolls the Oregon State Registrar as a

low-cost federal law enforcer — again, contrary to the clearly

expressed wishes of a majority of Oregonians and contrary to

Printz, which does not permit such enrollments even where

they might appear otherwise reasonable or efficient. Cf

Printz, 521 U.S. at 935.°

The Ashcroft Directive plainly violates multiple

constitutional principles of state sovereignty, and for that

reason is not a “proper” act in effectuation of the CSA.

b. Of course, the Constitution does not simply protect

state sovereignty — it protects another, more fundamental form

of “sovereignty,” the liberty of the individual. See, e.g., U.S.

Const. amend I-[X, amend. XIV. Indeed, the protection of

state sovereignty is merely an instrumental means for securing

individual liberty, as this Court has recognized: “(t}he

Constitution does not protect the sovereignty of States for the

benefit of the States or state governments as abstract political

entities, or even for the benefit of the public officials

governing the States.” New York, 505 U.S. at 181. Instead,

“the Constitution divides authority between federal and state

governments for the protection of individuals. State

® See 66 Fed. Reg. at 56,608 (“Thus, it should be possible to identify the

cases in which federally controlled substances are used to assist suicide in

Oregon in compliance with Oregon law by obtaining reports from the

Oregon State Registrar without having to review patient medical records or

otherwise investigate doctors. Accordingly, implementation of this

directive in Oregon sheuld not change the DEA’s current practices with

regard to enforcing tre CSA so as materially to increase monitoring or

investigation of physicians or other health care providers or to increase

review of physicians’ prescribing patterns of controlled substances used for

pain relief.”).

29

sovereignty is not just an end in itself: ‘Rather, federalism

secures to citizens the liberties that derive from the diffusion

of sovereign power.”” Jd. (citation omitted).

Under a constitutional framework in which individual

liberty is of preeminent constitutional importance, the

“propriety” prong of the Necessary and Proper Clause should

be interpreted to require at least as much federal attention and

respect for individual liberty interests — both recognized and

colorable.

In this case, there are colorable liberty interests at stake —

namely, those of individuals to make end-of-life medical

decisions without coercion by state bureaucrats in a distant

capital. Members of this Court have recognized that those

interests are neither insignificant nor without persuasive

arguments for constitutional protection. See, e.g., Vacco, 521

U.S. at 809 (Stevens, J., concurring) (there is “room for further

debate” about the scope of constitutional protection for

autonomy to make end-of-life decisions); Glucksburg, 521

U.S. at 745 (there is a “specific [constitutional] interest in

making decisions about how to confront an imminent death”)

(Stevens, J., concurring).

If the Necessary and Proper Clause calls for heightened

attention to the needs of state sovereignty, then it should

compel simularly heightened attention to the possible liberty

interests implicated by this case. At a minimum, that requires

the Court to apply a strong presumption in favor of the most

basic procedural protection for disputed individual liberty

interests — the pluralism, and attendant possibilities of choice,

that division of authority among multiple competing

sovereignties makes possible. Where, as here, federal policy

would effectively destroy the heterodox policy of the sole state

offering protection for a liberty interest — one that members of

this Court have acknowledged may have a colorable basis for

constitutional protection in some circumstances — that policy

30

patently violates the “propriety” prong of the Necessary and

Proper Clause.

CONCLUSION

For the foregoing reasons, the judgment of the Ninth

Circuit Court of Appeals should be affirmed.

Respectfully submitted,

MARK K. MOLLER PAMELA HARRIS

THE CATO INSTITUTE (Counsel of Record)

1000 Massachusetts Ave., N.W. GARRETT W. WOTKYNS

Washington, D.C. 20001 ARTHUR W.S. DUFF

(202) 842-0200 LAURA DE JAAGER*

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

* Admitted in Illinois only

Counsel for Amicus Curiae

Dated: July 18, 2005