Pubdate: Tue, 24 Jan 2006
Source: Ft. Worth Star-Telegram (TX)
Copyright: 2006 Star-Telegram, Fort Worth, Texas
Contact:  http://www.star-telegram.com/
Details: http://www.mapinc.org/media/162
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

SCOPE OF AUTHORITY

The Supreme Court's ruling on Oregon's physician-assisted suicide law 
narrowly focused on the U.S. attorney general's statutory authority 
but at the same time seemed to say something broader about the scope 
of executive power.

The 6-3 ruling on Jan. 17 said that the U.S. attorney general 
couldn't undermine Oregon's Death With Dignity Act in the guise of 
regulating physicians. But the decision shouldn't be read as an 
endorsement of physician-assisted suicide.

Under the Oregon law, physicians can prescribe lethal drugs to 
terminally ill patients under carefully restricted circumstances. 
Voters approved the measure in 1994 and rejected a 1997 attempt to repeal it.

Nevertheless, as attorney general, John Ashcroft issued a directive 
in 2001 saying that physicians who acted under the Death With Dignity 
Act could lose their prescription-writing authorization because he 
considered assisting suicide to be "not a legitimate medical purpose."

The legal question before the Supreme Court was whether the 
Controlled Substances Act, which delegates federal authority for 
regulating drugs, allows the attorney general to unilaterally decide 
what is a "legitimate medical purpose" when states traditionally have 
governed medical practice.

The justices didn't rule on whether Congress can delegate such power 
- -- they merely said it had not done so in the CSA, and certainly not 
in the manner claimed by the administration.

"The structure of the CSA ... conveys unwillingness to cede medical 
judgments to an executive official who lacks medical expertise," 
Justice Anthony Kennedy wrote for the majority.

In another section, he wrote: "The statute and our 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, however, the statute 
manifests no intent to regulate the practice of medicine generally."

The CSA gives the attorney general certain duties, the court said, 
but they are specific and limited.

"It is not enough that the terms 'public interest,' 'public health 
and safety' and 'federal law' are used in the part of the statute 
over which the attorney general has authority," Kennedy wrote in a 
comment that could have resonance beyond this case. "The statutory 
terms 'public interest' and 'public health' do not call on the 
attorney general, or any other executive official, to make an 
independent assessment of the meaning of federal law."

Justice Clarence Thomas complained that the ruling was inconsistent 
with the medical marijuana decision earlier this year, in which 
federal law trumped state law. There, the court held that the 
Controlled Substances Act allowed for the prosecution of medical 
patients who grow their own marijuana for pain relief, even in states 
that allow the practice.

It might be possible to distinguish that case on the grounds that it 
involved a substance that is illegal under all circumstances and a 
finding by Congress, not an executive officer, that marijuana has no 
valid medicinal use.

By focusing on statutory language, the decision on physician-assisted 
suicide leaves open the prospect that Congress could specifically 
give the attorney general the power that Ashcroft had claimed.

Congress might seek to control the debate by defining "legitimate 
medical purpose." That would set up another -- probably more intense 
- -- fight over the scope of states' rights.
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MAP posted-by: Jay Bergstrom