546 U.S. 243 (2006)
In 1994 Oregon voters enacted the Oregon Death With Dignity Act.1 The Act exempts state-licensed physicians from civil or criminal liability when they dispense or prescribe a lethal dose of drugs to a terminally ill patient.2 Eligibility requires a diagnosis of an incurable and irreversible disease expected to cause death within six months.3 The patient must make a voluntary and informed request and obtain confirmation from a consulting physician.4
The statute requires attending physicians to determine competency.5 They must provide information about palliative alternatives.6 They must refer patients for counseling if depression or psychological disorder impairs judgment.7 Physicians must maintain detailed medical records that the Oregon Department of Human Services reviews.8 In 2004 thirty-seven patients ended their lives by ingesting medication prescribed under the Act.9
The Controlled Substances Act was enacted in 1970.10 It places substances in five schedules based on potential for abuse, accepted medical use, and safety under medical supervision.11 Schedule II substances require a written nonrefillable prescription from a registered physician.12 A 1971 regulation requires every prescription to be issued for a legitimate medical purpose by a practitioner acting in the usual course of professional practice.13
Physicians must obtain registration from the Attorney General.14 The Attorney General may deny suspend or revoke registration when inconsistent with the public interest.15 The Attorney General must consider five statutory factors including state recommendations and compliance with state and federal law.16
In 1997 members of Congress asked the DEA to prosecute or revoke the registrations of Oregon physicians who assisted suicide.17 Attorney General Janet Reno concluded that the CSA did not authorize the DEA to displace state regulation of medical practice or override a state's determination of legitimate medical practice.18 Legislation granting explicit authority failed to pass.19
In February 2001 Oregon's Attorney General wrote to incoming Attorney General John Ashcroft requesting consultation if the Department revisited the issue.20 An adviser replied that no review was pending.21 On November 9 2001 without consulting Oregon officials Attorney General Ashcroft issued an Interpretive Rule.22 The Rule declared that assisting suicide is not a legitimate medical purpose under 21 CFR §1306.04.23 It stated that prescribing dispensing or administering controlled substances for that purpose violates the CSA and may render a physician's registration inconsistent with the public interest.24 The Rule applies regardless of state-law authorization.25
Every prescription filled under the Oregon Act uses Schedule II substances.26 Revocation of DEA registration would bar a physician from prescribing them.27 The State of Oregon joined by a physician a pharmacist and terminally ill patients sued in the United States District Court for the District of Oregon.28 The district court entered a permanent injunction against enforcement of the Interpretive Rule.29 A divided panel of the Ninth Circuit invalidated the Rule.30 The Supreme Court granted certiorari.31
Whether the Controlled Substances Act authorizes the Attorney General to prohibit physicians from prescribing controlled substances for use in physician-assisted suicide under a state law permitting the procedure?32
No. The established facts demonstrate that the November 9 2001 Interpretive Rule declared assisting suicide not a legitimate medical purpose under 21 CFR §1306.04.35 The Rule stated that prescribing Schedule II substances for that purpose violates the CSA.36 It added that such conduct may render registration inconsistent with the public interest.37 The CSA's text requires the Attorney General to consider five specific factors for public interest determinations.38
The statute also requires deference to the Secretary of Health and Human Services on medical and scientific matters.39 Yet the Rule bypassed the five-factor analysis.40 It bypassed the required procedures for scheduling or individual registration actions.41 The Rule's attempt to criminalize an entire class of conduct authorized by the Oregon Death With Dignity Act therefore exceeds the statutory delegation.42
The Controlled Substances Act does not authorize the Attorney General to prohibit physicians from prescribing controlled substances for use in physician-assisted suicide under the Oregon Death With Dignity Act.43
Related opinions on this issue
Joined by Chief Justice Roberts And Justice Thomas
Justice Scalia dissented on multiple independent grounds.44 He argued that the Attorney General's interpretation of legitimate medical purpose in the regulation is entitled to Auer deference because the regulation is ambiguous and the interpretation is not plainly erroneous or inconsistent with the regulation.45 He maintained that the Directive is a valid interpretation of the Attorney General's own regulation.46
Justice Scalia further contended that the Attorney General possesses independent authority under the public interest and public health and safety factors in the registration provisions to conclude that assisted suicide threatens public safety.47 This authority renders the Interpretive Rule valid even under Chevron review of the statutory text.48 He emphasized that the CSA's broad delegation in the registration provisions supports the Attorney General's conclusions without any need for Auer deference.49
Justice Thomas dissented separately while agreeing with the majority's result on the merits.50 He criticized the Court's reliance on the avoidance canon as misplaced.51 He argued that the avoidance canon is not a license to rewrite statutes and is particularly inappropriate here.52
The CSA is not a statute that has been interpreted to provide a broad sweeping mandate to the Attorney General.53 Justice Thomas noted that the majority's restrictive interpretation of the CSA rests on constitutional principles that the Court had rejected only seven months earlier in Gonzales v. Raich.54 He concluded that the Attorney General's determination is at least reasonable and therefore entitled to deference.
Whether the Attorney General's 2001 Interpretive Rule interpreting 21 CFR §1306.04 is entitled to Auer deference?55
An administrative rule interpreting an agency's own ambiguous regulation receives substantial deference under Auer v. Robbins unless the interpretation is plainly erroneous or inconsistent with the regulation.56
No. The established facts show that 21 CFR §1306.04 merely restates statutory phrases such as legitimate medical purpose and course of professional practice.57 The regulation does so without adding specificity or reflecting agency expertise in formulating the regulation.58 Because the regulation parrots the statute rather than resolving ambiguity through the Attorney General's experience Auer deference does not apply to the Interpretive Rule's declaration that assisting suicide is not a legitimate medical purpose.59
The 2001 Interpretive Rule is not entitled to Auer deference.60
Whether the Interpretive Rule is entitled to Chevron deference as an interpretation of ambiguous provisions in the Controlled Substances Act?61
Chevron deference applies to an agency's interpretation of an ambiguous statute only when Congress has delegated authority to the agency to make rules carrying the force of law. The interpretation must be promulgated in the exercise of that authority.62
No. The established facts establish that the CSA delegates to the Attorney General only authority to promulgate rules relating to registration and control.63 Control is defined as scheduling substances under specified procedures that the Interpretive Rule did not follow.64 The Rule instead purports to declare an entire class of medical conduct criminal without applying the five-factor public interest test or deferring to the Secretary on medical judgments.65 This places the Rule outside the delegated authority and renders Chevron deference inapplicable.66
The Interpretive Rule is not entitled to Chevron deference.67
Related opinions on this issue
Joined by Chief Justice Roberts And Justice Thomas
Justice Scalia maintained that even if Auer deference were unavailable the Attorney General's interpretation of the statutory phrase legitimate medical purpose would still receive Chevron deference.68 He argued that Congress implicitly delegated interpretive authority through the broad public interest standard in the registration provisions.69 The Attorney General's conclusions on public interest and public health and safety therefore warrant Chevron deference and are valid under that standard.70
The Directive's construction of the registration provisions independently supports the conclusion that assisted suicide falls outside legitimate medical practice under the CSA.71
Whether the Interpretive Rule is entitled to Skidmore deference as a persuasive interpretation of the Controlled Substances Act?72
An agency interpretation not entitled to Chevron deference receives respect under Skidmore only to the extent it has the power to persuade based on thoroughness validity of reasoning consistency and other factors.73
No. The established facts show that the Interpretive Rule was issued without consultation outside the Department of Justice.74 The Rule was issued without applying the CSA's five-factor analysis or deferring to the Secretary on medical questions.75 The Rule's conclusion that assisting suicide is not a legitimate medical purpose therefore lacks the thoroughness and expert foundation required for Skidmore deference.76 The CSA's structure confirms that Congress did not intend to delegate such broad medical authority to the Attorney General.77
The Interpretive Rule is not entitled to Skidmore deference.78