A dissent from the many dissents from Attorney General Ashcroft's interpretation of the Controlled Substances Act.

• Author: Spindelman, Marc
• Position: Oregon's Death with Dignity Act

Abstract: In this essay, Professor Marc Spindelman examines the states' rights arguments that have been deployed in the Oregon v. Ashcroft litigation to challenge Attorney General John Ashcroft's interpretation of the federal Controlled Substances Act. Professor Spindelman criticizes those arguments as reflecting bad politics--politics of complicity--that self-styled liberals should resist and reject.

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On November 6, 2001, U.S. Attorney General John Ashcroft issued an order that was published a few days later in the pages of the Federal Register. (1) Relying heavily on a Memorandum that he received from the Department of Justice's Office of Legal Counsel, (2) Ashcroft announced that he had:

determined that assisting suicide is not a "legitimate medical purpose" within the meaning of 21 CFR 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the Controlled Substances Act. (3) Such conduct by a physician registered to dispense controlled substances may "render his registration ... inconsistent with the public interest" and therefore subject to possible suspension or revocation under 21 U.S.C. 824(a)(4) [of the Controlled Substances Act]. As Ashcroft's order went on to explain, his conclusion:

applies regardless of whether state law authorizes or permits [assisted suicide] by practitioners or others and regardless of the condition of the person whose suicide is assisted. The Attorney General recognizes, however, that pain management is a legitimate medical purpose justifying a physician's dispensing of controlled substances. Finally, the Attorney General's determination makes no change in the current standards and practices of the DEA in any State other than Oregon. (4) The ink of the Ashcroft order had scarcely dried when defenders of Oregon's permissive assisted suicide law, its "Death With Dignity Act," (5) made an appearance in federal court, (6) arguing that the order was beyond Ashcroft's authority. (7) (So swift was the reaction to the Ashcroft order that, if defenders of Oregon's law didn't claim they had been sandbagged by it, (8) I would have thought that they had almost been checking their watches, waiting for the order to burst onto the scene.) Among the arrows they shot at the Attorney General's interpretation of the Controlled Substances Act was the claim, variously made, that it was a violation of states' rights. But more--much more--about this later on.

Meanwhile, a steady drumbeat from opinion leaders, aligned against Ashcroft's order, began to be heard--in the newspapers, on the radio, and of course, on the internet. (9) But the academic commentary didn't lag far behind the commentarazzi. The New England Journal of Medicine (10) and The Journal of the American Medical Association, (11) as well as a number of law reviews, began (or slated themselves) to fill pages with complaints about what the Ashcroft order did. (12) It is something of an understatement to observe that Ashcroft's order generated much anger and caused much sorrow. (13)

But, finally, could be heard some big sighs of relief and not a few unironic "thank heavens" when the cavalry arrived. After fairly extensive hearings and paper submissions, U.S. District Judge Robert E. Jones struck down the Ashcroft order, telling the Attorney General (and everyone else) in no uncertain terms: I disagree. (14)

It should now be apparent that Ashcroft's gloss of the Controlled Substances Act has already occasioned a good deal of "microscopic analyses and relentless, probing criticism" (15)--analyses and criticism that seem sure to continue for some time. But what have largely remained unaddressed, at least in academic circles, are the quite troubling implications of the district court's rejection of Ashcroft's reading of the Controlled Substances Act.

In highlighting some of these implications, I realize that one might mistake me for an enthusiastic supporter of, or an apologist for, the Attorney General. As my argument should make clear, I am neither. (16) In any event, as University of Michigan Law School Professor Yale Kamisar put it in a different context years ago: "I take it ... that one may sharply dissent from portions of [Judge Jones' opinion] without warmly endorsing every aspect of [Ashcroft's order itself]. I take it that here, as elsewhere, one may spot the bad without committing himself to, or knowing, the perfectly good." (17)

My quarrel with the district court's opinion in Oregon v. Ashcroft is, on one level, pretty direct. To the extent that that decision relied on a states' rights principle in rejecting the Attorney General's interpretation of the Controlled Substances Act, it was flawed. But my contention really navigates a deeper stream than that. I do not simply venture that the district court in Oregon v. Ashcroft misplaced reliance on a principle of states' rights to the degree it did, but also that liberal proponents of those arguments have, in making them, courted unnecessary danger for a range of liberal causes.

To trace my theme, I begin with a brief, introductory discussion of the district court's Oregon v. Ashcroft opinion. I will then join the interpretive debate to which that opinion has, in part, given rise. Having established the basis for reading Oregon v. Ashcroft as a states' rights decision, I take up more directly the traditionalist principle of the states' rights arguments that have surfaced both in the district court opinion in Oregon v. Ashcroft and in the surrounding litigation. My goal in this part will be to test and assess the possible justifications for the states' rights claims in play in Oregon v. Ashcroft until I arrive at the political argument that, I believe, best underwrites them. Having identified that political argument, I will proceed to criticize it not for being political, but for being bad politics for those of us who view ourselves as liberals--politics of complicity--that we should oppose. If there is any single tendentious claim I want to make in this essay, that is it.

Introduction

On April 17, 2002, U.S. District Court Judge Robert E. Jones officially rebuffed U.S. Attorney General John Ashcroft's interpretation of the federal Controlled Substances Act. (18) According to the court, nothing in the text or the history of that law indicated that Congress intended to give the Attorney General the authority to set national policy on physician-assisted suicide. (19)

Many people both inside and outside of the academy, including me, have been deeply concerned about Ashcroft's conservative political maneuverings. We haven't forgotten that, during his Senate confirmation hearings, Senator Ashcroft made a pledge to the American public that his ideology wouldn't shape or drive his decisions as the country's top law enforcement official. (20) But it appeared to many who had followed (or heard about) those confirmation hearings that Ashcroft had gone back on his word when he read the Controlled Substances Act creatively as a physician-assisted suicide ban. (21)

No surprise, then, that the district court's opinion in Oregon v. Ashcroft drew a stirring round of applause. (22) After all, that opinion did more than simply check what it described as the Attorney General's attempt to "stifle an ongoing 'earnest and profound debate' in the various states concerning physician-assisted suicide." (23) Moreover, at various points, the court seemed to go out of its way to scold the Attorney General, delivering him an audible--and resolute--smack on the hand." (24)

But at least some defenders of Oregon's assisted suicide law didn't let it go at that. They saw in the district court's opinion far deeper shades of meaning. The court's decision, they proclaimed, confirmed that it is the responsibility of the states, and not the federal government, to regulate the practice of medicine, including physician-assisted suicide. Letting the public in on its understanding of Oregon v. Ashcroft, officials at Compassion in Dying, for example, jubilantly announced that: "Attorney General Ashcroft tried to grab for himself power that rightly belongs to the individual states[.] ... [But] Judge Robert E. Jones' opinion confirms that the regulation of medical practice is the state's job." (25) In a national public radio debate that took place just a few days after Judge Jones released his opinion in Oregon v. Ashcroft, Kathryn Tucker, Director of Legal Affairs for Compassion in Dying and a lawyer representing the "patient-plaintiffs" in the current litigation (who argued before the Supreme Court in Washington v. Glucksberg (26)) went a good deal farther. Here is what Tucker said:

[W]hether medications are being used 'inappropriately' is the heart and was the heart of Judge Jones' ruling. And the answer to whether medications are being used appropriately or inappropriately is something that has always been left to the states. And that's what Judge Jones recognized[.] (27) This states' rights understanding of the district court's opinion in Oregon v. Ashcroft is hardly beyond doubt. (28) Indeed, it has already provoked--and encountered--some fairly intense resistance (interestingly, among others, from some who are opposed to Ashcroft's interpretation of the Controlled Substances Act). (29) And so, before I place any significant weight on it as an approach to my central theme, I need, at least briefly, to join the interpretive debate that that reading of the district court's decision in Oregon v. Ashcroft has spawned.

Reading and Re-reading Oregon v. Ashcroft

What, exactly, is so doubtful about the states' rights reading of the district court's opinion in Oregon v. Ashcroft? What's problematic about the idea that the district court's Oregon v. Ashcroft opinion "confirmed" or had as its "heart" a traditionalist principle of states' rights?

Perhaps the most prominent textual reason to resist a states' rights interpretation of Oregon v...