Oral argument in Gonzales v. Oregon *.

• Position: Verbatim

Proceedings

CHIEF JUSTICE ROBERTS: The Court will now hear argument in Gonzales v. Oregon.

General Clement.

Oral Argument of Paul D. Clement On Behalf of Petitioners

GENERAL CLEMENT: Thank you, Mr. Chief Justice, and may it please the Court:

Before Oregon became the first State to authorize assisted suicide, the prescription of federally controlled substances to facilitate suicide generally violated State law and also violated Federal law.

Respondents contend that Oregon's decision to remove the State-law consequences from that conduct also operated to remove the Federal law consequences.

JUSTICE STEVENS: May I ask, what Federal law does it violate?

GENERAL CLEMENT: It violated the Controlled Substances Act. And the D.A. had taken the position, before Oregon acted, for example, that the fact that a doctor prescribed controlled substances for purposes of a suicide was a basis for revoking his license.

JUSTICE O'CONNOR: Well, now, would that be true also for any doctor who provided the substances to furnish an execution of a convicted death penalty convict?

GENERAL CLEMENT: No, Justice O'Connor, the death penalty situation, lethal injection, is different, for a number of reasons. Of course, the D.A. has long taken a position of nonenforcement in that context, which would be protected by this Court's decision in Heckler against Cheney.

JUSTICE O'CONNOR: But, otherwise, it would be the same reasoning--

GENERAL CLEMENT: I don't think it would, Justice O'Connor, at least not since 1994, because in 1994 Congress passed a statute that I think is best read as ratifying the practice of lethal injection. This is 18 U.S.C. 3596. And that statute authorizes the Federal Government to use the method of execution in the State of the sentencing court. And at the time that was passed, in 1994, the overwhelming majority--something like 25 of the 38 States--had already used lethal injection. So, I would read that as--

JUSTICE O'CONNOR: But would it be open--

GENERAL CLEMENT:--a ratification--

JUSTICE O'CONNOR:--to the Attorney General to pass a regulation like this one, and all of a sudden apply it--some new Attorney General, who had a very different view of the death penalty?

GENERAL CLEMENT: No, I don't think so, Justice O'Connor, and I think the reason is, at a minimum, 18 U.S.C. 3596, because I think that would now stand as an obstacle to that type of regulatory impression--

JUSTICE SOUTER: Does the--

JUSTICE O'CONNOR: Well, not if it just refers back to the States, would it?

GENERAL CLEMENT: No, but this is a provision that dictates how the Federal Government shall do its executions. And I think, at that time, in 1994, it effectively ratified the practice of using lethal injection. I--

JUSTICE SOUTER: Does the statute--does the Federal statute specifically authorize doctors to do this? Or does it simply say that convicts may be executed by lethal injection?

GENERAL CLEMENT: Well, the statute itself says that the Federal Government shall use the method in the State in which the sentencing court sits, the Federal sentencing court.

JUSTICE SOUTER: No, but the method may simply be lethal injection. And, going back to Justice O'Connor's question, it might still be the case that, on the theory the Government is advancing this morning, it would be unlawful for a doctor to engage in that, because that was, in fact, not within the limits of the practice of medicine, the doctor was using a controlled substance for something outside the practice of medicine, and hence, it would be illegal.

GENERAL CLEMENT: And again, Justice Souter, I think the best reading is, that is now foreclosed--that interpretation would be foreclosed by Congress's action in 1994. There are also some technical differences--

JUSTICE SOUTER: But I take it Congress did not refer specifically to--or did not include a specific authorization of doctors, so that we'd have to do a little construction to get to your point.

GENERAL CLEMENT: I think we would have to do a little construction, in fairness, but I do think--I mean, and there also are some differences, because, for example, as I understand the practice in most States, doctors actually aren't exactly involved in the specific process of administering the lethal injection. There's also a technical difference, which is, with respect to lethal injection, it's not the federally controlled substance which is the lethal agent. It's just that there's a federally controlled substance that's used to administer--to relieve pain in conjunction with a different injection that's not--that does not involve a federally controlled substance. And that's actually the lethal agent. Here, of course, it's--

JUSTICE BREYER: In your view, were it not for the statute, the Federal statute, your view of the Attorney General's authority is--leaving that statute aside, if it weren't there--the Attorney General, should we have an Attorney General who is opposed to the death penalty, could, in fact, regulate or stop Federal--State death penalties, through this same mechanism, by saying that no physician can be registered insofar as he engages in that.

GENERAL CLEMENT: Justice Breyer, I haven't thoroughly considered the issue, precisely because I do think the '94 statute stands as an obstacle. It may be that some of the differences in the way that the death penalty is administered, the fact that doctors aren't directly involved--

JUSTICE SCALIA: At most, it--

GENERAL CLEMENT:--would allow for--

JUSTICE SCALIA:--at most, it would allow him to prosecute, or to move for the de-certification of doctors who engage in that practice. And if the State chooses to do it without doctors, it would be okay.

GENERAL CLEMENT: I think that's right. As I say, I think some of the technical ways in which the penalty is administered could make a difference.

JUSTICE BREYER: Well, what we're getting--at least what I'm getting at was this is, I would probably have read the statute to say that the drug statute, which is trying to stop drug addiction and heroin and--has nothing to do with the death penalty. And I would think that the argument on the other side is that the statute has nothing to do with assisted suicide. Congress didn't think about the death penalty, and it didn't think about assisted suicide. It's rather like the tobacco case, except a fortiori. Now, what's your response to that?

GENERAL CLEMENT: Well, several points, Justice Breyer. I think that, first of all, I would say that Congress did focus on suicide, if not physician-assisted suicide, and I think that's an important distinction that I'd like to come back to. But I actually think the comparison to the tobacco case is quite instructive, because there what you had is a statute in which something seemed like it might come within the plain terms of the FDCA, and yet if you took that literally, it would run smack into another statutory scheme.

And here, there is no other statutory scheme. To the contrary, the most natural reading of the Controlled Substances Act, I would say--and I'll address it in a minute--is that this falls within the authority of the Attorney General. And if you look to any alternative congressional indication of intent on this topic, the only thing you would find is the Assisted Suicide Funding Restriction Act of 1997, which continues a Federal policy against assisted suicide.

JUSTICE GINSBURG: May I comment--

GENERAL CLEMENT: So, in that sense, I think it's very different than the Brown and Williamson case.

Now, taking, though--

JUSTICE GINSBURG: May I--

GENERAL CLEMENT:--as to what Congress--

JUSTICE GINSBURG:--may I ask you about the position this Court took in Glucksberg? That is, everyone on the Court in that case seemed to assume that physician-assisted suicide was a matter for the State, and the Government, at that time, said, "State legislatures undoubtedly have the authority to create the kind of exception to assisted suicide fashioned by the court of appeals. There is every reason to believe that State legislatures will address the urgent issues involved in this case in a fair and impartial way." And then the Government added that, "There is no indication that the political processes are malfunctioning in this area." That was a position presented to this Court in the Glucksberg case by the Government.

Now, you are rejecting that position.

GENERAL CLEMENT: With respect, Justice Ginsburg, I don't think so. I--we stand by the brief in Glucksberg. Now, obviously in the Glucksberg case, the Federal law that everybody was focused on--and, in fairness, the United States was focused on--was the Federal Constitution. And so, that's one important difference.

Another important difference--and I think this is an important point--is that the Federal regulation here, the interpretation of the Attorney General, does not purport to foreclose the issue of assisted suicide--

JUSTICE SOUTER: Well, they say--

GENERAL CLEMENT:--which is--

JUSTICE SOUTER:--that, in practical terms, that is exactly what it does, because the only way they can administer their law sensibly is by using these kinds of drugs, scheduled drugs.

GENERAL CLEMENT: Well, Justice Souter, we don't have a factual record on that question. I think it's not clear that that's the case, because, I mean, proponents of physician-assisted suicide have identified alternative methods. Perhaps the most notorious proponent of physician-assisted suicide, Dr. Kevorkian, operated without a federal controlled substance license for the last six years before his conviction--

JUSTICE SOUTER: Well, did he use--

GENERAL CLEMENT:--at the time--

JUSTICE SOUTER:--did he use a controlled substance?

GENERAL CLEMENT: He did not. He did not, which is why he could do that. So, it just goes to prove that physician-assisted suicide and the use of federally controlled substances for physician assisted suicide are not coextensive.

JUSTICE GINSBURG: But we're told that the--those methods are less gentle to the patient, the methods that...