Gonzales v. Oregon and the future of agency-made criminal law.

• Author: Stiles, Trevor

1. INTRODUCTION

   Over the past decade, right-to-life issues have been thrust on the American political scene in ever-increasing fashion. (1) For months at a time, one could hardly pick up a newspaper or turn on a television without being bombarded by media images stressing the importance of the right-to-life debate. Arguments over these matters have become increasingly caustic and political, spilling over into fresh battlegrounds both in the legislative and judicial branches. The Terri Schiavo saga best highlights the spillover of the right-to-life movement into politics. (2) When her husband attempted to remove the vegetative Ms. Schiavo from life support, activists on both sides of the debate entered into a grueling three-year campaign to settle the issue both by utilizing the court system and by pressuring politicians on the state and national level to intervene. (3)

   With right-to-life and right-to-death issues preeminent on the national political scene, the Supreme Court decided Gonzales v. Oregon, (4) a case rife with these concerns. Oregon was a challenge to the Attorney General's Interpretive Rule of the Controlled Substances Act ("CSA"). (5) The Attorney General attempted to assert his authority under the CSA to criminalize the use of drugs in physician-assisted suicide. The Supreme Court sided with the State of Oregon (6) and affirmed the Ninth Circuit's ruling (7) that the CSA does not empower the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide when state law permits such use. (8)

   Since the Supreme Court delivered its opinion, most scholars who wrote about Oregon focused on its impact on federalism. (9) These scholars echo Justice Thomas's dissent because they view Oregon in light of Gonzales v. Raich, which focused on Commerce Clause federalism. (10) Accordingly, they argue that the Court's reasoning depends on subtle twists of federalism doctrine to maintain consistency between the two opinions. (11)

   Many attempts have been made to explain how federalism concerns drove the Court's reasoning. (12) While federalism certainly played a role in deciding Oregon, this Comment will show that the decision gains more clarity when read as the Court's attempt to integrate the administrative law doctrines laid down in United States v. Mead Corp. (13) and Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (14) This integration provides guidelines for the powers of the Attorney General, particularly as they apply to agency-made criminal law and regulatory preemption.

   Reading Oregon as a synthesis of administrative law and federalism doctrines has many potential implications. This Comment will draw out the implications of this administrative law and federalism amalgam for an important arena of agency-made criminal law. In particular, this Comment will evaluate Oregon's impact on agency enforcement of Racketeer Influenced and Corrupt Organizations ("RICO") (15) statute provisions as they affect the prosecution of terrorists in the United States. A synthesized reading of Oregon impacts the Attorney General's ability to utilize expansive criminal powers outside the textual bounds of RICO. (16) The application of RICO to terrorism creates significant challenges under this reading and may require Congress to delineate clearer boundaries to the Attorney General for effective prosecution of the War on Terror.

   Part II of this Comment provides a brief history of agency deference, more closely examines the decisions in Oregon and Raich, and draws out the apparent discrepancy among the Justices' voting patterns in those two cases. (17) Part III more directly addresses whether Oregon is a decision determined solely along federalism lines. This Part examines five distinctions that could explain the Court's ruling: agency-made rules versus Congress-made statutes, criminal penalties versus civil penalties, explicit congressional approval versus congressional silence, economic versus non-economic factors, and vanguard state versus laggard state approaches. (18) Part III shows that none of these approaches fully explains why the Attorney General could criminalize behavior in Raich by using the CSA, but not criminalize similar behavior in Oregon. Part IV proposes an alternative reading by suggesting that the focus on federalism in Oregon obscures the intricate questions of administrative law that drive the case. (19) Part V of this Comment exposes the challenges a hybrid federalism/administrative law reading of Oregon creates for agencies that attempt to utilize RICO in the War on Terror. (20)

2. BACKGROUND

   1. ADMINISTRATIVE LAW DOCTRINES

      Deference granted by courts to agencies has been in a state of flux over the past several decades. For years, the Supreme Court utilized the doctrines laid out in Universal Camera Corp. v. NLRB (21) and Skidmore v. Swift & Co. (22) The landmark Chevron decision changed deference considerably. (23) Recently, the Supreme Court has begun to flesh out its Chevron doctrine, incorporating much of the previous Skidmore regime. (24)

      1. Pre-Chevron Deference

         After the passage of the Administrative Procedure Act ("APA") in 1946, (25) the Supreme Court addressed the issue of judicial review of agency action in 1951 with Universal Camera Corp. v. NLRB. (26) In Universal Camera Corp., the Court laid out a very deferential standard of review, upholding agency action where "substantial evidence" (27) exists. Additionally, Universal Camera Corp. requires courts to consider the totality of the record. (28) The substantial evidence standard provided deference somewhere between that of the "jury standard" and the "clearly erroneous standard." (29)

         Skidmore v. Swift & Co. provided for lesser, persuasive deference in certain cases. (30) In Skidmore, plant employees appealed a decision of the United States Department of Labor ("DOL") that would not require payment for "on-call" time at their plant. (31) The Supreme Court noted that while the DOL's decision did not bind courts, it did reflect "a body of experience and informed judgment to which courts and litigants may properly resort for guidance." (32) This deference is such that "[t]he weight of ... a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." (33) Under the Skidmore paradigm, agency decisions that were not binding on courts were still granted deference to the extent that they were persuasive.

      2. The Rise of the Chevron Era

         Judicial review in administrative law, however, revolves around Chevron USA v. Natural Resources Defense Council. (34) Moving away from the multi-factor deference analysis applied in previous cases, the Chevron Court outlined a two-step approach to determining deference: First, is there an ambiguous statute? Second, is the agency's construction of that ambiguous statute reasonable? If a statute is silent or ambiguous with respect to the specific issue, the court must consider whether the agency's action was based on a permissible construction of the statute. (35)

         Chevron acts to achieve uniformity in federal law (36) and keep the courts out of political questions. (37) By deferring to reasonable agency interpretations, courts avoid becoming entangled in determinations of policy preference. (38)

      3. The Post-Chevron Era: Back to the Future?

         United States v. Mead Corp., (39) decided in 2001, further refined the Court's approach to judicial deference. In Mead, the Court held that before applying Chevron, two questions must be answered in the affirmative. (40) First, has Congress delegated power to the agency to make rules with the force of law? Second, has the agency, in fact, acted with such authority? (41) The Mead variations have been called Chevron Step Zero because they determine the hurdles an agency must clear before being granted Chevron deference. (42) Oregon was the Court's first attempt to deal with regulatory preemption since Mead. (43)

         Auer v. Robbins (44) provided for deference in situations where an agency determines the ambiguities of its own substantive regulation via an Interpretive Rule. In Auer, the plaintiff police officers sued their police commissioner to recover overtime pay. (45) The Secretary of Labor issued an interpretation of the "salary-basis" test which determined that the police officers were salaried and not eligible for overtime pay. (46)

         On appeal, the Supreme Court stated that "[b]ecause Congress has not directly spoken to the precise question at issue, we must sustain the Secretary's approach so long as it is based on a permissible construction of the statute." (47) That is, an agency's interpretation of its own statute should be shown deference as long as it is a permissible construction of the statute. (48)

         Taken as a whole, the evolving Chevron/Mead line of cases outlines some boundaries for the doctrine of judicial deference to agency action. Courts show deference to agencies when those agencies interpret their own statutes as long as the regulations promulgated by the agencies are enacted within the scope of their delegated legislative power.

   2. GONZALES V. RAICH (49)

      In 1996, California voters passed Proposition 215, which legalized the use of marijuana for medical purposes. (50) Proposition 215 directly conflicted with federal law because the CSA listed marijuana as a Schedule One drug, which prevented its use in any circumstance, even if deemed medically necessary. (51)

      In October of 2002, Angel Raich, Diana Monson, and two anonymous parties filed suit seeking injunctive and declaratory relief. Those parties claimed that the CSA impinged on their right to use medical marijuana under state law. (52) This challenge to the CSA focused primarily on Commerce Clause issues. The plaintiffs argued that homegrown...