Brief for the petitioners: Gonzales v. State of Oregon *.

• Position: Verbatim

OPINIONS BELOW

The opinion of the court of appeals is reported at 368 F.3d 1118. The order of the district court granting respondents' motion for summary judgment is reported at 192 F. Supp. 2d 1077.

SUMMARY OF ARGUMENT

The court of appeals acknowledged that the Controlled Substances Act prohibits practitioners from prescribing or dispensing controlled substances except for a "legitimate medical purpose" and "in the usual course of professional treatment." Pet. App. 5a (quoting 21 C.F.R. 1306.04). Respondents nonetheless seek to overturn the Attorney General's determination that the prescription of controlled substances, not for ordinary treatment, but for the express purpose of ending an individual's life, does not constitute a legitimate medical purpose or treatment under federal law. Respondents essentially submit that the Attorney General's interpretation of federal law would frustrate the purposes of a state-law voter initiative, and so the federal law must yield. Thus, the issue presented in this case is "who gets to decide," id. at 9a, whether a practitioner's conduct comports with this requirement of federal law--the Attorney General, pursuant to a uniform national standard, or each of the 50 States, according to 50 different views regarding the proper use of controlled substances. The text and structure of the CSA, as well as general principles of federalism, make clear that the Attorney General's interpretation of federal law need not yield to Oregon's contrary policy choices.

It is well established that the federal government, rather than the States, normally defines the terms in federal laws, giving them a single, nationwide definition. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). There is no basis to depart from this general rule in interpreting the terms "legitimate medical purpose" and "treatment" in the context of the CSA. To the contrary, it is clear that Congress intended the CSA to set uniform nationwide minimum standards for controlled substances, and, in light of the centrality of the "legitimate medical purpose" and "treatment" limitations to the entire federal scheme, those terms must also be given a uniform federal meaning.

Indeed, decisions of this Court already recognize that the CSA establishes national rules that do not yield to contrary medical policy that an individual State might seek to follow as a matter of state law. In United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001), the Court made clear that the federal determination that marijuana has no "accepted medical use in treatment in the United States" foreclosed the assertion of a "medical necessity" defense to a federal prosecution under the CSA, despite a California law purporting to recognize a valid medical use of marijuana and to permit its use in certain circumstances.

There is no reason to believe that a different result is required when federal law determines that a drug has a legitimate medical purpose, but that not all uses of that drug are legitimate. This Court, for example, upheld a CSA conviction based on a physician's prescription of a schedule II drug--one that has a recognized and accepted medical use--for illegitimate purposes and did so on the basis of a national standard for medical practice. See United States v. Moore, 423 U.S. 122 (1975).

The conclusion that the Attorney General reached on this issue--that assisting suicide is not a legitimate medical purpose--finds overwhelming support in tradition, history, law, and medical expertise. The Attorney General's conclusion is consistent with the laws of 49 States, other laws and policies of the federal government, and leading associations of the medical profession. These facts alone demonstrate that the Attorney General's conclusion is reasonable and therefore must be upheld in light of the deference to which his views are entitled.

In the decision below, the court of appeals majority ignored the Mississippi Band line of cases, and declined to follow Oakland Cannabis and Moore in upholding the uniform national scope of the CSA. The court concluded that in order for the federal government to regulate controlled substances in a way that limits the practice of medicine in Oregon, a clear Congressional statement of its intent to do so was necessary. Pet. App. 11a. Citing Gregory v. Asheroft, 501 U.S. 452, 460 (1991), the court of appeals held that a clear statement is necessary whenever federal law impacts upon an area within the traditional regulatory authority of the States, such as the practice of medicine. Pet. App. 11a. But Gregory applies only to federal laws that have an impact upon essential aspects of State sovereignty, such as the tenure of judges and location of a State's Capital. To expand Gregory to all areas of private conduct traditionally regulated by the States, as the court of appeals did here, would dramatically expand the clear statement requirement to encompass virtually all areas of federal regulation, in light of the breadth of the States' traditional police powers. The Loehner-era authority that the court of appeals cited for the proposition that certain categories of activity are presumptively beyond the authority of the federal government has long ago been rejected by this Court as both unworkable and unfounded, and there is no basis for resurrecting it now.

The court of appeals' belief that the Attorney General's ruling implicates the presumption against preemption, Pet. App. 14a-15a, was similarly misplaced. It is not "preemption" for the federal government to prohibit conduct as a matter of federal law that a particular State would deem permissible under its own laws. Oregon is free to decriminalize assisted suicide as a matter of Oregon law, as it has done. But Oregon could not displace contrary federal law by prefacing its state statutes with the phrase "notwithstanding any provision of federal law," and no presumption against preemption allows it to exempt its physicians from compliance with federal directives sub silentio. Federal law does not yield even when it frustrates the purposes of state law.

There is no basis in the statutory language or purpose of the CSA for subordinating the Attorney General's ability to administer the Act's comprehensive national scheme for controlling dangerous substances to the views of each of the States regarding those substances' permissible uses.

ARGUMENT

1. THE CONTROLLED SUBSTANCES ACT ESTABLISHES A COMPREHENSIVE AND UNIFORM NATIONAL SYSTEM FOR REGULATING CONTROLLED SUBSTANCES, AND THE ATTORNEY GENERAL'S INTERPRETIVE RULING IMPLEMENTING THE ACT IS SUPPORTED BY THE OVERWHELMING WEIGHT OF AUTHORITY

1. The Prohibition On Dispensing Controlled Substances For Other Than A "Legitimate Medical Purpose" In The "Usual Course Of Professional Treatment" Is Central To The Regulatory Scheme Established By The Controlled Substances Act

   The CSA prohibits a practitioner from prescribing controlled substances except "for a legitimate medical purpose" and "in the usual course of professional treatment." Pet. App. 5a (quoting 21 C.F.R. 1306.04). Those limitations appear throughout the CSA, reflecting their centrality to the comprehensive national scheme Congress established to regulate controlled substances. The starting point of the Act (indeed, its first provision) is the recognition that "[m]any of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people." 21 U.S.C. 801(1). And the entire federal scheme for regulating controlled substances is built upon the dual principles that the dispensing of controlled substances should be allowed for such "legitimate medical purpose[s]," but that their distribution for illegitimate purposes should be prohibited. Ibid.

   The Attorney General is charged under the CSA, 21 U.S.C. 811(a), with assigning controlled substances to the appropriate "schedule" according to whether they have a "currently accepted medical use in treatment in the United States," 21 U.S.C. 812(b), and other factors. A substance for which the Attorney General has determined there is "no currently accepted medical use in treatment in the United States" is placed in schedule I, 21 U.S.C. 812(b)(1)(B), and may not be prescribed or dispensed except pursuant to a research protocol specifically approved by the Attorney General and the Secretary of Health and Human Services to ensure the substance will not be diverted from "legitimate medical or scientific use," 21 U.S.C. 823(f). Substances in other schedules may be dispensed by practitioners only because they have "a currently accepted medical use in treatment in the United States," 21 U.S.C. 812(b)(2)(B), (3)(B), (4)(B), and (5)(B), thereby underscoring the centrality of "medical use" in "treatment" as a necessary condition for allowing a scheduled substance to be dispensed at all.

   Other provisions of the Act similarly confine a practitioner's latitude in dispensing drugs in schedules II through V to legitimate medical uses in the course of treatment. The CSA makes it unlawful for "any person" to "dispense" a controlled substance "[e]xcept as authorized" by the CSA. 21 U.S.C. 841(a) and (a)(1). The Act defines "dispense" to include the "prescribing" of a controlled substance by a "practitioner," 21 U.S.C. 802(10), and defines "practitioner" to include a professionally-licensed physician dispensing controlled substances "in the course of professional practice," 21 U.S.C. 802(21). The CSA reiterates the "in the course of ... professional practice" limitation in other provisions concerning the misuse of federal order forms, 21 U.S.C. 828(e), and unlawful possession of controlled substances, 21 U.S.C. 844(a). The "legitimate medical purpose" requirement is also reiterated in 21 U.S.C. 823(a)(1), which requires the Attorney General to ensure that there is an "adequate ... supply" of...