Excerpts in the news:
Justice Anthony M. Kennedy, writing for the majority:
"The government's claim that the attorney general's decision is a
legal,
not medical, one does not suffice, for the Interpretive Rule places
extensive reliance on medical judgments and views of the medical
community
in concluding that assisted suicide is not a legitimate medical
purpose.
The idea that Congress gave him such broad and unusual authority
through
an implicit delegation is not sustainable.
"The importance of the issue of physician-assisted suicide makes the
oblique form of the claimed delegation all the more suspect. ... The
(law)
and this court's case law amply support the conclusion that Congress
regulates medical practice insofar as it bars doctors from using their
prescription-writing powers as a means to engage in illicit drug
dealing
and trafficking as conventionally understood. Beyond this, the act
manifests no intent to regulate the practice of medicine generally,
which
is understandable given federalism's structure and limitations.
"The (law's) structure and operation presume and rely upon a
functioning
medical profession regulated under the states' police powers. The
federal
government can set uniform standards for regulating health and
safety."
Justice Antonin Scalia, dissenting:
"The court's decision today is perhaps driven by a feeling that the
subject of assisted suicide is none of the federal government's
business.
It is easy to sympathize with that position.
"The prohibition or deterrence of assisted suicide is certainly not
among
the enumerated powers conferred on the United States by the
Constitution,
and it is within the realm of public morality ... traditionally
addressed
by the so-called police power of the states. But then, neither is
prohibiting the recreational use of drugs or discouraging drug
addiction
among the enumerated powers. ...
"Unless we are to repudiate a long and well-established principle of
our
jurisprudence, using the federal commerce power to prevent assisted
suicide is unquestionably permissible.
"The question before us is not whether Congress can do this, or even
whether Congress should do this; but simply whether Congress has done
this
in" the Controlled Substances Act. "I think there is no doubt that it
has.
If the term 'legitimate medical purpose' has any meaning, it surely
excludes the prescription of drugs to produce death."
AFAIK the phrase "legitimate medical purpose" is NOT part of the relevant
portion of the statute. It may exist in the preamble (Congressional
findings), in predecessor narcotics tax acts (repealed), and in REGULATIONS
promulgated under the CSA, but Scalia's wrong if he wants to imply it's
actually in the material portion of the act. If it were, he'd have a good
point; he MIGHT have a little point based on the preamble if it weren't for
more specific wording of the relevant portion of the statute.
Justice Clarence Thomas, in a separate dissent:
"... Today this court concludes that the (Controlled Substances Act)
is
merely concerned with fighting 'drug abuse' and only insofar as that
abuse
leads to 'addiction or abnormal effects on the nervous system' ...
"While the scope of the (act) and the attorney general's power
thereunder
are sweeping, and perhaps troubling, such expansive federal
legislation
and broad grants of authority to administrative agencies are merely
the
inevitable and inexorable consequence of this court's Commerce Clause
and
separation-of-powers jurisprudence."
Interesting! Like he's saying, "You made your bed, now lay in it."
Justice Kennedy:
"We conclude the (law's) prescription requirement does not authorize
the
attorney general to bar dispensing controlled substances for assisted
suicide in the face of a state medical regime permitting such conduct.
The
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 (law) show that Congress did not have this
far-reaching
intent to alter the federal-state balance and the congressional role
in
maintaining it."
I'm looking at this with the possibility of the Galiber bill (NY, to allow
dispensaries for controlled substances for non-medical use) coexisting with
the federal CSA. If NY licenses professionals for non-therapeutic
dispensing (inasmuch as the relevant portions of the CSA say "other
practitioner" and "professional practice" WITHOUT specifying that the
practice be therapeutic, is this anything the current language of the US CSA
stops? It would seem Oregon could license thanatologists to dispense for
killing without their needing to be considered to be practicing medicine,
unless Scalia is right.
Majority & dissents in full (not read by me yet) here:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000
&invol=04-623
In Your Sly Tribe,
Robert
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