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.