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January 24, 2006 - Ft. Worth Star-Telegram (TX)

Editorial: Scope Of Authority

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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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