Oregon Assisted Suicide Law Upheld

The Supreme Court has ruled, 6-3, that the Attorney General does not have the authority to override Oregon’s assisted suicide law. The Court (correctly) did not announce a new constitutional right to assisted suicide; rather, the case was about statutory interpretation and separation of powers. Ashcroft claimed authority under the Controlled Substances Act to override the Oregon law. The crucial question is whether prescriptions issued under the Oregon “death with dignity law” could run afoul of a federal regulation that required that prescriptions “be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” The administration also argued that Ashcroft had the right to overrule the Oregon law based on the principle established in Chevron and a few other cases that executive interpretations of ambiguous statutes should be accorded significant deference as long as they are reasonable.

The opinion, written by Kennedy, quite persuasively argues that Congress did not delegate this authority to the executive, and that the Chevron rule is not controlling when there is a question of overriding state law. With respect to both arguments, the fact that Oregon had made a determination that assisted suicide was a legitimate medical practice was a key factor, and appropriate so. Scalia, in a revealingly outcome-oriented moment, argues in his dissent that “if the term “legitimate medical purpose” has any meaning, it surely excludes the prescription of drugs to produce death.” But, of course, this is begging the question: the state of Oregon, who has the primary power to regulate the medical profession, disagrees with Scalia’s normative argument, making it clear that his empirical claim self-evidently false. There’s a complex balance between federal branches and federal and state power involved here, and I think the balance struck by the majority makes sense. Congress does, in my view, have the power to override the Oregon law if it chooses , but if it doesn’t do so clearly it is appropriate for the Court to defer to state law. As Kennedy writes: “[t]he Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.” That’s correct, I think. One might think that Scalia–with his interest in separation-of-powers and federalism–would be on board, but as we know when his stated legal principles conflict with conservative policy positions, Scalia has no compunction about going with the latter.

The other news is that Roberts joined Thomas and Scalia in dissent; this is, of course, a coalition we’ll be seeing plenty of. A blogger at Petterico is “very, very pleased” by this development. And, in a way, he should be; Roberts is likely a Scalia/Thomas-style reactionary, and with Alito the only question is whether he’s even worse. And yet, this is also a curiously personality-driven analysis of the case, appropriate for the Bush-fluffing sectors of the blogosphere. What matters in this case is not an overriding of state law–which one might think would at least attract some concern from someone interested in conservative legal principles–but the fact that Roberts agrees with Scalia, irrespective of the content of the latter’s opinion.

…UPDATE: More from TalkLeft.