Curbing a Power Play
Is there a message for Attorney General Alberto Gonzales in last week's
6 to 3 Supreme Court decision rejecting the claim by his predecessor, John Ashcroft, that the federal government has the authority to overrule Oregon's assisted-suicide law? In my nonlegal opinion, it casts serious doubt on Gonzales's effort to defend President Bush's authorizing wiretapping of domestic residents without a court order.
Here's why. As the majority opinion by Justice Anthony Kennedy in the Oregon case makes plain, that decision does not go to the merits or the constitutionality of the state's unique law permitting physicians to give prescriptions for lethal doses of drugs to terminally ill patients who can prove their mental competence and who wish to avoid the possible pain of protracted deaths. Instead, Kennedy said, it was a straightforward question of interpreting the extent of the power Congress had granted the attorney general when it passed the Controlled Substances Act (CSA) in 1970.
Ashcroft cited that law in 2001 when he ruled that, notwithstanding the Death With Dignity measure twice approved by Oregon voters, any physician who gave a patient prescriptions for drugs that could be used for suicide would be subject to federal prosecution. Ashcroft wrote a regulation, borrowing language from the 1970 statute that said that assisting suicide was not "a legitimate medical purpose" and was "inconsistent with the public interest."
As Kennedy noted, Ashcroft, in his earlier role as a senator, had supported legislation in 1997 to give exactly that prosecutorial power to the attorney general, but the bill never became law. In 2001, operating with the approval of President Bush, Ashcroft asserted that the authority could be found in the 1970 statute.
Supporters of the Oregon law went to court and, in succession, a district court, the U.S. Court of Appeals for the 9th Circuit and now the Supreme Court have found that Ashcroft overstepped his authority. The courts have consistently ruled that a statute written to control drug trafficking may not be used to regulate medical practice, traditionally a province of the states.
In affirming that judgment, Kennedy said several things about interpreting the will of Congress that could be a clue to how the courts will treat Bush's claim that he has the power to authorize warrantless wiretaps. Years ago Congress explicitly barred such wiretaps except as authorized by a special court created by the Foreign Intelligence Surveillance Act. But Gonzales says that statute was, in effect, amended and substantially broadened -- to include warrantless wiretapping -- when Congress empowered the president to "use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001."
The issues are different, but in the Oregon case only three of the nine justices -- John Roberts, Antonin Scalia and Clarence Thomas -- took an expansive view of the kind of executive authority that the Bush administration has claimed for itself.
In his opinion, Kennedy took a distinctly skeptical attitude toward the claim of implied congressional authority. "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," Kennedy wrote. "The idea that Congress gave the attorney general such broad and unusual authority through an implicit delegation in the CSA's registration provision is not sustainable." And then Kennedy added a quotation from the 2001 Supreme Court decision in the case of Whitman v. American Trucking Associations that surely will be noted at the White House and the Justice Department: "Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions -- it does not, one might say, hide elephants in mouseholes."
When it comes to warrantless wiretaps, it looks to me as if the administration is trying to hide an elephant of a violation of civil liberties in the mousehole of a vague anti-al Qaeda resolution passed by Congress without a single reference to its impact on the Foreign Intelligence Surveillance Act.
Ashcroft was on sound procedural and constitutional grounds when, as a senator, he sought to write into law a provision that would override the Oregon law. The right way for Bush to have gone was to ask Congress for authority to expand wiretapping as an antiterrorism tool, not just assert such a power.
I think the Supreme Court will send him that message.