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ALBERTO R. GONZALES, ATTORNEY
GENERAL,
et al., PETITIONERS v. OREGON
et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[January 17, 2006]
Justice Thomas, dissenting.
When Angel Raich and Diane Monson
challenged the application of the Controlled Substances Act
(CSA), 21 U.S.C.
§ 801 et seq., to their purely intrastate
possession of marijuana for medical use as authorized under
California law, a majority of this Court (a mere seven months
ago) determined that the CSA effectively invalidated
Californias law because the CSA is a comprehensive
regulatory regime specifically designed to regulate which
controlled substances can be utilized for medicinal purposes,
and in what manner. Gonzales v. Raich,
545 U.S. ___, ___ (2005) (slip op., at 24) (emphasis
added). The majority employed unambiguous language, concluding
that the manner in which controlled substances can
be utilized for medicinal purposes is one of the
core activities regulated by the CSA. Id.,
at ___ (slip op., at 25). And, it described the CSA as
creating a comprehensive framework for regulating the
production, distribution, and possession of
controlled substances,
Today the majority beats a hasty
retreat from these conclusions. Confronted with a regulation
that broadly requires all prescriptions to be issued for a
legitimate medical purpose, 21 CFR §
1306.04(a) (2005), a regulation recognized in Raich
as part of the Federal Governments closed
system for regulating the manner in
which controlled substances can be utilized for medicinal
purposes, 545 U.S., at ___, ___ (slip op., at 10, 24),
the majority rejects the Attorney Generals admittedly
at least reasonable, ante, at 26,
determination that administering controlled substances to
facilitate a patients death is not a
The majoritys newfound
understanding of the CSA as a statute of limited reach is all
the more puzzling because it rests upon constitutional
principles that the majority of the Court rejected in
Raich. Notwithstanding the States
Of course there is nothing obscure about the CSAs grant of authority to the Attorney General. Ante, p. ___ (Scalia, J., dissenting). And, the Attorney Generals conclusion that the CSA prohibits the States from authorizing physician assisted suicide is admittedly at least reasonable, ante, at 26 (opinion of the Court), and is therefore entitled to deference. Ante, at 67 (Scalia, J., dissenting). While the scope of the CSA and the Attorney Generals power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Courts Commerce Clause and separation-of-powers jurisprudence. See, e.g., Raich, supra; Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001).
I agree with limiting the
applications of the CSA in a manner consistent with the
principles of federalism and our constitutional structure.
Raich, supra, at ___ (Thomas, J., dissenting);
cf. Whitman, supra, at 486487 (Thomas, J.,
concurring) (noting constitutional concerns with broad
delegations of authority to administrative agencies). But
that is now water over the dam. The relevance of such
considerations was at its zenith in Raich, when we
considered whether the CSA could be applied to the intrastate
possession of a controlled substance consistent with the
limited federal powers enumerated by the Constitution. Such
considerations have little, if any, relevance where, as here,
we are merely presented with a question of statutory
interpretation, and not the extent of constitutionally
permissible federal power. This is particularly true where, as
here, we are interpreting broad, straightforward language
within a statutory framework that a majority of this Court has
concluded is so comprehensive that it necessarily nullifies the
States
Notes
1. The majority does not expressly address whether the ingestion of a quantity of drugs that is sufficient to cause death has an abnormal effec[t] on the nervous system, ante, at 25, though it implicitly rejects such a conclusion.
2. Notably, respondents have not seriously pressed a constitutional claim here, conceding at oral argument that their point is not necessarily that [the CSA] would be unconstitutional. Tr. of Oral Arg. 44. In any event, to the extent respondents do present a constitutional claim, they do so solely within the framework of Raich. Framed in this manner, the claim must fail. The respondents in Raich were local growers and users of state-authorized, medical marijuana, who stood outside the interstate drug market and possessed medicinal marijuana not intended for the stream of commerce. 545 U.S., at ___, ___, (slip op., at 5, 16) (Thomas, J., dissenting). Here, by contrast, the respondent-physicians are active participants in the interstate controlled substances market, and the drugs they prescribe for assisting suicide have likely traveled in interstate commerce. If the respondents in Raich could not sustain a constitutional claim, then a fortiori respondents here cannot sustain one. Respondents acceptance of Raich forecloses their constitutional challenge.