AT FIRST GLANCE, the struggle between the Justice Department and Oregon over that state's assisted suicide law looks like a classic confrontation between federal power and states' rights. In a letter dated November 6, Attorney General John Ashcroft ordered federal drug enforcement agents to go after physicians who prescribe life-ending doses of drugs to suicidal patients under Oregon's "Death With Dignity Act." In response, Oregon attorney general Hardy Myers asked for, and obtained, a federal court order preventing the DEA from pursuing its physicians.
The press describes this fight as a man-bites-dog story about a Democratic state official standing tough against intrusive, big-government Republicans. This makes for a good story line, but misses the crucial point. Neither the state nor the Justice Department has even scant interest in a principled fight about federalism and proper spheres of governmental authority. Instead, they're going to the mattresses over a technical and opportunistic argument about three words in a statutory amendment.
In 1970, Congress passed the Controlled Substances Act. This law organizes all drugs regulated under federal law into five schedules and authorized the Drug Enforcement Administration to regulate physicians and other drug handlers. In 1984, Congress passed an amendment to the act giving the attorney general and the DEA power to revoke the licenses of doctors who lack a "legitimate medical purpose" when prescribing medications. The fight between Ashcroft and Myers comes down to this issue: Who decides the meaning of "legitimacy" in a license-revocation hearing? Is "legitimate" a common standard or something that can vary by location?
It is useful here to note all the things that are not at issue in this controversy. When it comes to national authority, Oregon does not dispute that the federal government has the power to regulate controlled substances within her borders. Congress is assumed to have broad authority to regulate items, like drugs, that are bought and sold in interstate commerce. Further, Oregon does not question that Congress has the power to delegate some of this power to the attorney general and, by extension, to the DEA; federal agents have been able, since the Progressive Era, to control drug distribution.
Finally, Oregon does not contest the power of the attorney general to revoke a physician's license because he or she acts outside of a vague "public interest"--a power given, by Congress's own account, because states were deemed too idiotic to regulate their own health care professionals. (Here's Rep. Hamilton Fish of New York on the need for the 1984 CSA Amendment: "State policing of these activities, as well as peer review within the profession, have not been adequate control measures. . . . State laws regarding the dispensing of controlled substances are also inadequate.")
Nor, interestingly, does John Ashcroft assert any power of the federal government to regulate or prohibit assisted suicide. Nothing in the attorney general's directive to the DEA questions the legitimacy of Oregon's suicide law; indeed, the Office of Legal Counsel opinion that prompted the Ashcroft memo is clear about its disinterest. According to the OLC, the policy "forecloses one, but only one, method of assisting suicide in a manner consistent with Oregon law." Should doctors--or anyone else--wish to assist someone in hastening their death, there are other methods at their disposal. Whether the attorney general thinks the federal government could or should prohibit assisted suicide is left to the imagination. The most he will say is that "the continued life of [American] citizens...should be regarded as a benefit." Indeed.
It is clear that there are no first principles of federalism at stake in this case, and perhaps no second or third ones, either. A federal judge will eventually decide who has the final say in defining vague statutory language about the prescribing of controlled drugs, and DEA agents will get back to the business of supervising pharmacists and physicians.
Meantime, there are serious issues here that neither side is taking seriously: the federal government's authority (and obligation) to supervise state decisions about life and death; a state's authority (and obligation) to gauge its citizens' interests. Shouldn't the federal government step in when a state authorizes its doctors to take lives? Shouldn't a state cry foul when federal agents regulate things assumed to be within the state police power--like regulating health and morality--for the better part of two hundred years?
Ashcroft versus Myers has the makings of a serious battle over the proper allocation of government power. But the debate will remain superficial because both sides want a win, and to win, the lawyers tell us, you have to define the controversy as narrowly as possible. Too bad.
Kim Kosman is a research associate at the American Enterprise Institute and a Ph.D. candidate at Boston College.
