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http://www.usdoj.gov/dea/pubs/csa.html

http://www.fda.gov/opacom/laws/cntrlsub/ctlsbtoc.htm

21 - FOOD AND DRUGS
CHAPTER 13 - DRUG ABUSE PREVENTION AND CONTROL
SUBCHAPTER I - CONTROL AND ENFORCEMENT|
Part F - General Provisions

903. Application of State law

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

(Pub. L. 91-513, title II, Sec. 708, Oct. 27, 1970, 84 Stat. 1284.)

United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 492 (2001)

The Attorney General can include a drug in schedule I only if the drug "has no currently accepted medical use in treatment in the United States," "has a high potential for abuse," and has "a lack of accepted safety for use . . . under medical supervision." §§ 812(b)(1)(A)-(C). Under the statute, the Attorney General could not put marijuana into schedule I if marijuana had any accepted medical use.

Gonzales v. Oregon, 546 U.S. 243, 249 (2006)

Controlled Substances Act (CSA or Act). 84 Stat. 1242, as amended, 21 U.S.C. § 801 et seq

Gonzales v. Oregon, 546 U.S. 243, 251 (2006)

The CSA explicitly contemplates a role for the States in regulating controlled substances, as evidenced by its pre-emption provision.

Gonzales v. Oregon, 546 U.S. 243, 253 (2006)

Attorney General Reno considered the matter and concluded that the DEA could not take the proposed action because the CSA did not authorize it to "displace the states as the primary regulators of the medical profession, or to override a state's determination as to what constitutes legitimate medical practice," Letter from Attorney General Janet Reno to Sen. Orrin Hatch, on Oregon's Death with Dignity Act (June 5, 1998), Hearings 5-6. Legislation was then introduced to grant the explicit authority Attorney General Reno found lacking; but it failed to pass. See H. R. 4006, 105th Cong., 2d Sess. (1998); H. R. 2260, 106th Cong., 1st Sess. (1999).

Gonzales v. Oregon, 546 U.S. 243, 253-254 (2006)

On November 9, 2001, without consulting Oregon or apparently anyone outside his Department, the Attorney General issued an Interpretive Rule announcing his intent to restrict the use of controlled substances for physician-assisted suicide. Incorporating the legal analysis of a memorandum he had solicited from his Office of Legal Counsel, the Attorney General ruled

"assisting suicide is not a 'legitimate medical purpose' within the meaning of 21 CFR 1306.04 (2001), and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the Controlled Substances Act. Such conduct by a physician registered to dispense controlled substances may 'render his registration . . . inconsistent with the public interest' and therefore subject to possible suspension or revocation under 21 U.S.C. 824(a)(4). The Attorney General's conclusion applies regardless of whether state law authorizes or permits such conduct by practitioners or others and regardless of the condition of the person whose suicide is assisted." 66 Fed. Reg. 56608 (2001).

Gonzales v. Oregon, 546 U.S. 243, 257 (2006)

Who decides whether a particular activity is in "the course of professional practice" or done for a "legitimate medical purpose"?

Gonzales v. Oregon, 546 U.S. 243, 258 (2006)

The Attorney General has rulemaking power to fulfill his duties under the CSA. The specific respects in which he is authorized to make rules, however, instruct us that he is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law.

Gonzales v. Oregon, 546 U.S. 243, 260 (2006)

The statutory references to "control" outside the scheduling context make clear that the Attorney General can establish controls "against diversion," e.g., § 823(a)(1), but do not give him authority to define diversion based on his view of legitimate medical practice.

Gonzales v. Oregon, 546 U.S. 243, 261 (2006)

The Interpretive Rule thus purports to declare that using controlled substances for physician-assisted suicide is a crime, an authority that goes well beyond the Attorney General's statutory power to register or deregister.

Gonzales v. Oregon, 546 U.S. 243, 262 (2006)

The Interpretive Rule works in the opposite direction, however: it declares certain conduct criminal, placing in jeopardy the registration of any physician who engages in that conduct.

It would be anomalous for Congress to have so painstakingly described the Attorney General's limited authority to deregister a single physician or schedule a single drug, but to have given him, just by implication, authority to declare an entire class of activity outside "the course of professional practice," and therefore a criminal violation of the CSA.

Gonzales v. Oregon, 546 U.S. 243, 264 (2006)

Even if he had, it is doubtful the Attorney General could cite the "public interest" or "public health" to deregister a physician simply because he deemed a controversial practice permitted by state law to have an illegitimate medical purpose.

As for the federal law factor, though it does require the Attorney General to decide "[c]ompliance" with the law, it does not suggest that he may decide what the law says. Were it otherwise, the Attorney General could authoritatively interpret "State" and "local laws," which are also included in 21 U.S.C. § 823(f), despite the obvious constitutional problems in his doing so. Just as he must evaluate compliance with federal law in deciding about registration, the Attorney General must as surely evaluate compliance with federal law in deciding whether to prosecute; but this does not entitle him to Chevron deference. See Crandon v. United States, 494 U.S. 152, 177, 110 S. Ct. 997, 108 L. Ed. 2d 132 (1990) (Scalia, J., concurring in judgment) ("The Justice Department, of course, has a very specific responsibility to determine for itself what this statute means, in order to decide when to prosecute; but we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference").

Gonzales v. Oregon, 546 U.S. 243, 265-266 (2006)

In a similar vein the 1970 Act's regulation of medical practice with respect to drug rehabilitation gives the Attorney General a limited role; for it is the Secretary who, after consultation with the Attorney General and national medical groups, "determine[s] the appropriate methods of professional practice in the medical treatment of . . . narcotic addiction." 42 U.S.C. § 290bb-2a; see 21 U.S.C. § 823(g) (2000 ed. and Supp. II) (stating that the Attorney General shall register practitioners who dispense drugs for narcotics treatment when the Secretary has determined the applicant is qualified to treat addicts and the Attorney General has concluded the applicant will comply with record keeping and security regulations); Moore, 423 U.S., at 144, 96 S. Ct. 335, 46 L. Ed. 2d 333 (noting that in enacting the addiction-treatment provisions, Congress sought to change the fact "that 'criminal prosecutions' in the past had turned on the opinions of federal prosecutors"); H. R. Rep. No. 93-884, p 6 (1974) ("This section preserves the distinctions found in the [CSA] between the functions of the Attorney General and the Secretary . . . . All decisions of a medical nature are to be made by the Secretary . . . . Law enforcement decisions respecting the security of stocks of narcotics drugs and the maintenance of records on such drugs are to be made by the Attorney General").

Gonzales v. Oregon, 546 U.S. 243, 269 (2006)

As we have noted before, the CSA "repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs." Raich, 545 U.S., at ___ , 125 S. Ct. 2195, 2203, 162 L. Ed. 2d 1. In doing so, Congress sought to "conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances." Ibid. It comes as little surprise, then, that we have not considered the extent to which the CSA regulates medical practice beyond prohibiting a doctor from acting as a drug "'pusher'" instead of a physician. Moore, 423 U.S., at 143, 96 S. Ct. 335, 46 L. Ed. 2d 333. In Moore, we addressed a situation in which a doctor "sold drugs, not for legitimate purposes, but primarily for the profits to be derived therefrom." Id., at 135, 96 S. Ct. 335, 46 L. Ed. 2d 333 (quoting H. R. Rep. No. 91-1444, pt. 1, at 10; internal quotation marks omitted). There the defendant, who had engaged in large-scale overprescribing of methadone, "concede[d] in his brief that he did not observe generally accepted medical practices." 423 U.S., at 126, 96 S. Ct. 335, 46 L. Ed. 2d 333 And in United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 121 S. Ct. 1711, 149 L. Ed. 2d 722 (2001), Congress' express determination that marijuana had no accepted medical use foreclosed any argument about statutory coverage of drugs available by a doctor's prescription.