(Slip Opinion) OCTOBER TERM, 2005 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GONZALES, ATTORNEY GENERAL, ET AL. v. OREGON
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 04–623. Argued October 5, 2005—Decided January 17, 2006
The Controlled Substances Act (CSA or Act), which was enacted in
1970 with the main objectives of combating drug abuse and control-
ling legitimate and illegitimate traffic in controlled substances,
criminalizes, inter alia, the unauthorized distribution and dispensa-
tion of substances classified in any of its five schedules. The Attorney
General may add, remove, or reschedule substances only after mak-
ing particular findings, and on scientific and medical matters, he
must accept the findings of the Secretary of Health and Human Ser-
vices (Secretary). These proceedings must be on the record after an
opportunity for comment. The dispute here involves controlled sub-
stances listed in Schedule II, which are generally available only by
written prescription, 21 U. S. C. §829(a). A 1971 regulation promul-
gated by the Attorney General requires that such prescriptions be
used “for a legitimate medical purpose by an individual practitioner
acting in the usual course of his professional practice.” 21 CFR
§1306.04. To prevent diversion of controlled substances, the CSA
regulates the activity of physicians, who must register in accordance
with rules and regulations promulgated by the Attorney General. He
may deny, suspend, or revoke a registration that, as relevant here,
would be “inconsistent with the public interest.” 21 U. S. C.
§§824(a)(4), 822(a)(2). In determining consistency with the public in-
terest, he must consider five factors, including the State’s recommen-
dation, compliance with state, federal, and local law regarding con-
trolled substances, and “public health and safety.” §823(f). The CSA
explicitly contemplates a role for the States in regulating controlled
substances. See §903.
The Oregon Death With Dignity Act (ODWDA) exempts from civil
2 GONZALES v. OREGON
Syllabus
or criminal liability state-licensed physicians who, in compliance with
ODWDA’s specific safeguards, dispense or prescribe a lethal dose of
drugs upon the request of a terminally ill patient. In 2001, the At-
torney General issued an Interpretive Rule to address the implemen-
tation and enforcement of the CSA with respect to ODWDA, declar-
ing that using controlled substances to assist suicide is not a
legitimate medical practice and that dispensing or prescribing them
for this purpose is unlawful under the CSA. The State, a physician, a
pharmacist, and some terminally ill state residents challenged the
Rule. The District Court permanently enjoined its enforcement. The
Ninth Circuit invalidated the Rule, reasoning that, by making a
medical procedure authorized under Oregon law a federal offense, it
altered the balance between the States and the Federal Government
without the requisite clear statement that the CSA authorized the
action; and in the alternative, that the Rule could not be squared
with the CSA’s plain language, which targets only conventional drug
abuse and excludes the Attorney General from medical policy deci-
sions.
Held: The CSA does not allow the Attorney General to prohibit doctors
from prescribing regulated drugs for use in physician-assisted suicide
under state law permitting the procedure. Pp. 8–28.
(a) An administrative rule interpreting the issuing agency’s own
ambiguous regulation may receive substantial deference. Auer v.
Robbins, 519 U. S. 452, 461–463. So may an interpretation of an am-
biguous statute, Chevron U. S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U. S. 837, 842–845, but only “when it appears that
Congress delegated authority to the agency generally to make rules
carrying the force of law, and that the agency interpretation claiming
deference was promulgated in the exercise of that authority,” United
States v. Mead Corp., 533 U. S. 218, 226–227. Otherwise, the inter-
pretation is “entitled to respect” only to the extent it has the “power
to persuade.” Skidmore v. Swift & Co., 323 U. S. 134, 140. Pp. 8–9.
(b) The Interpretive Rule at issue is not entitled to Auer deference
as an interpretation of 21 CFR §1306.04. Unlike the underlying
regulations in Auer, which gave specificity to a statutory scheme the
Secretary of Labor was charged with enforcing and reflected the La-
bor Department’s considerable experience and expertise, the underly-
ing regulation here does little more than restate the terms of the
statute itself. The CSA allows prescription of drugs that have a “cur-
rently accepted medical use,” 21 U. S. C. §812(b); requires a “medical
purpose” for dispensing the least controlled substances of those on
the schedules, §829(c); and defines a “valid prescription” as one “is-
sued for a legitimate medical purpose,” 21 U. S. C. A.
§830(b)(3)(A)(ii). Similarly, physicians are considered practitioners if
Cite as: 546 U. S. ____ (2006) 3
Syllabus
they dispense controlled substances “in the course of professional
practice.” 21 U. S. C. §802(21). The regulation just repeats two of
these statutory phrases and attempts to summarize the others. An
agency does not acquire special authority to interpret its own words
when, instead of using its expertise and experience to formulate a
regulation, it has elected merely to paraphrase the statutory lan-
guage. Furthermore, any statutory authority for the Interpretive
Rule would have to come from 1984 CSA amendments adding the
“public interest” requirement, but 21 CFR §1306.04 was adopted in
1971. That the current interpretation runs counter to the intent at
the time of the regulation’s promulgation is an additional reason why
Auer deference is unwarranted. Pp. 9–11.
(c) The Interpretive Rule is also not entitled to Chevron deference.
The statutory phrase “legitimate medical purpose” is ambiguous in
the relevant sense. However, Chevron deference is not accorded
merely because the statute is ambiguous and an administrative offi-
cial is involved. A rule must be promulgated pursuant to authority
Congress has delegated to the official. The specific respects in which
the Attorney General is authorized to make rules under the CSA
show that he is not authorized to make a rule declaring illegitimate a
medical standard for patient care and treatment specifically author-
ized under state law. Congress delegated to the Attorney General
only the authority to promulgate rules relating to “registration” and
“control” of the dispensing of controlled substances, 21 U. S. C. A.
§821, and “for the efficient execution of his [statutory] functions,” 21
U. S. C. §871(b). Control means “to add a . . . substance to a sched-
ule,” §802(5), following specified procedures. Because the Interpre-
tive Rule does not concern scheduling of substances and was not is-
sued under the required procedures, it cannot fall under the Attorney
General’s control authority. Even if “control” were understood to sig-
nify something other than its statutory definition, it could not sup-
port the Interpretive Rule. Nor can the Interpretive Rule be justified
under the CSA’s registration provisions. It does not undertake the
Act’s five-factor analysis for determining when registration is “incon-
sistent with the public interest,” §823(f), and it deals with much more
than registration. It purports to declare that using controlled sub-
stances for physician-assisted suicide is a crime, an authority going
well beyond the Attorney General’s statutory power to register or de-
register physicians. It would be anomalous for Congress to have
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. It is not enough that “public interest,”
4 GONZALES v. OREGON
Syllabus
“public health and safety,” and “Federal law” are used in the part of
the Act over which the Attorney General has authority. Cf. Sutton v.
United Air Lines, Inc., 527 U. S. 471. The first two terms do not call
on the Attorney General, or any Executive official, to make an inde-
pendent assessment of the meaning of federal law. The Attorney
General did not base the Interpretive Rule on an application of the
five-factor test generally, or the “public health and safety” factor spe-
cifically. Even if he had, it is doubtful that he could cite those factors
to deregister a physician simply because he deemed a controversial
practice permitted by state law to have an illegitimate medical pur-
pose. The federal-law factor requires the Attorney General to decide
“[c]ompliance” with the law but does not suggest that he may decide
what the law is. To say that he can define the substantive standards
of medical practice as part of his authority would also put 21 U. S. C.
§871(b) in considerable tension with the narrowly defined control and
registration delegation. It would go, moreover, against the plain lan-
guage of the text to treat a delegation for the “execution” of his func-
tions as a further delegation to define other functions well beyond the
Act’s specific grants of authority. The authority desired by the Gov-
ernment is inconsistent with the Act’s design in other fundamental
respects, e.g., the Attorney General must share power with, and in
some respect defer to, the Secretary, whose functions are likewise de-
lineated and confined by the Act. Postenactment congressional com-
mentary on the CSA’s regulation of medical practice is also at odds
with the Attorney General’s claimed authority. The Government’s
claim that the Attorney General’s decision is a legal, not medical, one
does not suffice, for the Interpretive Rule places extensive reliance on
medical judgments and views of the medical community in conclud-
ing that assisted suicide is not a legitimate medical purpose. The
idea that Congress gave him such broad and unusual authority
through an implicit delegation is not sustainable. The importance of
the issue of physician-assisted suicide makes the oblique form of the
claimed delegation all the more suspect. Pp. 11–22.
(d) The Attorney General’s opinion is unpersuasive under
Skidmore. The CSA and this Court’s 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 under-
stood. Beyond this, the Act manifests no intent to regulate the prac-
tice of medicine generally, which is understandable given federal-
ism’s structure and limitations. The CSA’s structure and operation
presume and rely upon a functioning medical profession regulated
under the States’ police powers. The Federal Government can set
uniform standards for regulating health and safety. In connection
Cite as: 546 U. S. ____ (2006) 5
Syllabus
with the CSA, however, the only provision in which Congress set
general, uniform medical practice standards, 42 U. S. C. §2990bb2a,
strengthens the understanding of the CSA as a statute combating
recreational drug abuse, and also indicates that when Congress
wants to regulate medical practice in the given scheme, it does so by
explicit statutory language. The difficulty in defending the Attorney
General’s declaration that the CSA impliedly criminalizes physician-
assisted suicide is compounded by the Act’s consistent delegation of
medical judgments to the Secretary and its otherwise careful alloca-
tion of powers for enforcing the CSA’s limited objectives. The Gov-
ernment’s contention that the terms “medical” or “medicine” refer to
a healing or curative art, and thus cannot embrace the intentional
hastening of a patient’s death, rests on a reading of 21 U. S. C.
§829(a)’s prescription requirement without the illumination of the
rest of the statute. Viewed in context, that requirement is better un-
derstood as ensuring that patients use controlled substances under a
doctor’s supervision so as to prevent addiction and recreational
abuse. To read prescriptions for assisted suicide as “drug abuse” un-
der the CSA is discordant with the phrase’s consistent use through-
out the Act, not to mention its ordinary meaning. The Government’s
interpretation of the prescription requirement also fails under the ob-
jection that the Attorney General is an unlikely recipient of such
broad authority, given the Secretary’s primacy in shaping medical
policy under the CSA and the Act’s otherwise careful allocation of de-
cisionmaking powers. Pp. 22–28.
368 F. 3d 1118, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed
a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined.
THOMAS, J., filed a dissenting opinion.
Cite as: 546 U. S. ____ (2006) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–623
_________________
ALBERTO R. GONZALES, ATTORNEY GENERAL,
ET AL., PETITIONERS v. OREGON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 17, 2006]
JUSTICE KENNEDY delivered the opinion of the Court.
The question before us is whether the Controlled Sub-
stances Act allows the United States Attorney General to
prohibit doctors from prescribing regulated drugs for use
in physician-assisted suicide, notwithstanding a state law
permitting the procedure. As the Court has observed,
“Americans are engaged in an earnest and profound de-
bate about the morality, legality, and practicality of physi-
cian-assisted suicide.” Washington v. Glucksberg, 521
U. S. 702, 735 (1997). The dispute before us is in part a
product of this political and moral debate, but its resolu-
tion requires an inquiry familiar to the courts: interpret-
ing a federal statute to determine whether Executive
action is authorized by, or otherwise consistent with, the
enactment.
In 1994, Oregon became the first State to legalize as-
sisted suicide when voters approved a ballot measure
enacting the Oregon Death With Dignity Act (ODWDA).
Ore. Rev. Stat. §127.800 et seq. (2003). ODWDA, which
survived a 1997 ballot measure seeking its repeal, ex-
empts from civil or criminal liability state-licensed physi-
2 GONZALES v. OREGON
Opinion of the Court
cians who, in compliance with the specific safeguards in
ODWDA, dispense or prescribe a lethal dose of drugs upon
the request of a terminally ill patient.
The drugs Oregon physicians prescribe under ODWDA
are regulated under a federal statute, the Controlled
Substances Act (CSA or Act). 84 Stat. 1242, as amended,
21 U. S. C. §801 et seq. The CSA allows these particular
drugs to be available only by a written prescription from a
registered physician. In the ordinary course the same
drugs are prescribed in smaller doses for pain alleviation.
A November 9, 2001 Interpretive Rule issued by the
Attorney General addresses the implementation and
enforcement of the CSA with respect to ODWDA. It de-
termines that using controlled substances to assist suicide
is not a legitimate medical practice and that dispensing or
prescribing them for this purpose is unlawful under the
CSA. The Interpretive Rule’s validity under the CSA is
the issue before us.
I
A
We turn first to the text and structure of the CSA.
Enacted in 1970 with the main objectives of combating
drug abuse and controlling the legitimate and illegitimate
traffic in controlled substances, the CSA creates a com-
prehensive, closed regulatory regime criminalizing the
unauthorized manufacture, distribution, dispensing, and
possession of substances classified in any of the Act’s five
schedules. Gonzales v. Raich, 545 U. S. ____, ___ (2005)
(slip op., at 9–10); 21 U. S. C. §841 (2000 ed. and Supp. II);
21 U. S. C. §844. The Act places substances in one of five
schedules based on their potential for abuse or depend-
ence, their accepted medical use, and their accepted safety
for use under medical supervision. Schedule I contains
the most severe restrictions on access and use, and Sched-
ule V the least. Raich, supra, at ___ (slip op., at 11); 21
Cite as: 546 U. S. ____ (2006) 3
Opinion of the Court
U. S. C. §812. Congress classified a host of substances
when it enacted the CSA, but the statute permits the
Attorney General to add, remove, or reschedule sub-
stances. He may do so, however, only after making par-
ticular findings, and on scientific and medical matters he
is required to accept the findings of the Secretary of
Health and Human Services (Secretary). These proceed-
ings must be on the record after an opportunity for com-
ment. See 21 U. S. C. A. §811 (main ed. and Supp. 2005).
The present dispute involves controlled substances
listed in Schedule II, substances generally available only
pursuant to a written, nonrefillable prescription by a
physician. 21 U. S. C. §829(a). A 1971 regulation promul-
gated by the Attorney General requires that every pre-
scription for a controlled substance “be issued for a legiti-
mate medical purpose by an individual practitioner acting
in the usual course of his professional practice.” 21 CFR
§1306.04(a) (2005).
To prevent diversion of controlled substances with medi-
cal uses, the CSA regulates the activity of physicians. To
issue lawful prescriptions of Schedule II drugs, physicians
must “obtain from the Attorney General a registration
issued in accordance with the rules and regulations prom-
ulgated by him.” 21 U. S. C. §822(a)(2). The Attorney
General may deny, suspend, or revoke this registration if,
as relevant here, the physician’s registration would be
“inconsistent with the public interest.” §824(a)(4);
§822(a)(2). When deciding whether a practitioner’s regis-
tration is in the public interest, the Attorney General
“shall” consider:
“(1) The recommendation of the appropriate State
licensing board or professional disciplinary authority.
“(2) The applicant’s experience in dispensing,
or conducting research with respect to controlled
substances.
4 GONZALES v. OREGON
Opinion of the Court
“(3) The applicant’s conviction record under Federal
or State laws relating to the manufacture, distribu-
tion, or dispensing of controlled substances.
“(4) Compliance with applicable State, Federal, or
local laws relating to controlled substances.
“(5) Such other conduct which may threaten the
public health and safety.” §823(f).
The CSA explicitly contemplates a role for the States in
regulating controlled substances, as evidenced by its pre-
emption provision.
“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 . . .
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 . . . and that State law so that the two
cannot consistently stand together.” §903.
B
Oregon voters enacted ODWDA in 1994. For Oregon
residents to be eligible to request a prescription under
ODWDA, they must receive a diagnosis from their attend-
ing physician that they have an incurable and irreversible
disease that, within reasonable medical judgment, will
cause death within six months. Ore. Rev. Stat. §§127.815,
127.800(12) (2003). Attending physicians must also de-
termine whether a patient has made a voluntary request,
ensure a patient’s choice is informed, and refer patients to
counseling if they might be suffering from a psychological
disorder or depression causing impaired judgment.
§§127.815, 127.825. A second “consulting” physician must
examine the patient and the medical record and confirm
the attending physician’s conclusions. §127.800(8). Ore-
gon physicians may dispense or issue a prescription for the
Cite as: 546 U. S. ____ (2006) 5
Opinion of the Court
requested drug, but may not administer it. §§127.815(L),
127.880.
The reviewing physicians must keep detailed medical
records of the process leading to the final prescription,
§127.855, records that Oregon’s Department of Human
Services reviews, §127.865. Physicians who dispense
medication pursuant to ODWDA must also be registered
with both the State’s Board of Medical Examiners and the
federal Drug Enforcement Administration (DEA).
§127.815(1)(L). In 2004, 37 patients ended their lives by
ingesting a lethal dose of medication prescribed under
ODWDA. Oregon Dept. of Human Servs., Seventh Annual
Report on Oregon’s Death with Dignity Act 20 (Mar. 10,
2005).
C
In 1997, Members of Congress concerned about ODWDA
invited the DEA to prosecute or revoke the CSA registra-
tion of Oregon physicians who assist suicide. They con-
tended that hastening a patient’s death is not legitimate
medical practice, so prescribing controlled substances for
that purpose violates the CSA. Letter from Sen. Orrin
Hatch and Rep. Henry Hyde to Thomas A. Constantine
(July 25, 1997), reprinted in Hearings on S. 2151 before
the Senate Committee on the Judiciary, 105th Cong., 2d
Sess., 2–3 (1999) (hereinafter Hearings). The letter re-
ceived an initial, favorable response from the director of
the DEA, see Letter from Thomas A. Constantine to Sen.
Orrin Hatch (Nov. 5, 1997), Hearings 4–5, but 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 over-
ride a state’s determination as to what constitutes legiti-
mate medical practice,” Letter from Attorney General
Janet Reno to Sen. Orrin Hatch, on Oregon’s Death with
6 GONZALES v. OREGON
Opinion of the Court
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).
In 2001, John Ashcroft was appointed Attorney General.
Perhaps because Mr. Ashcroft had supported efforts to
curtail assisted suicide while serving as a Senator, see,
e.g., 143 Cong. Rec. 5589–5590 (1997) (remarks of Sen.
Ashcroft), Oregon Attorney General Hardy Myers wrote
him to request a meeting with Department of Justice
officials should the Department decide to revisit the appli-
cation of the CSA to assisted suicide. Letter of Feb. 2,
2001, App. to Brief for Patient-Respondents in Opposition
55a. Attorney General Myers received a reply letter from
one of Attorney General Ashcroft’s advisers writing on his
behalf, which stated
“I am aware of no pending legislation in Congress
that would prompt a review of the Department’s in-
terpretation of the CSA as it relates to physician-
assisted suicide. Should such a review be commenced
in the future, we would be happy to include your
views in that review.” Letter from Lori Sharpe (Apr.
17, 2001), id., at 58a.
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 feder-
ally controlled substances to assist suicide violates the
Cite as: 546 U. S. ____ (2006) 7
Opinion of the Court
Controlled Substances Act. Such conduct by a physi-
cian registered to dispense controlled substances may
‘render his registration . . . inconsistent with the pub-
lic interest’ and therefore subject to possible suspen-
sion or revocation under 21 U. S. C. 824(a)(4). The At-
torney General’s conclusion applies regardless of
whether state law authorizes or permits such conduct
by practitioners or others and regardless of the condi-
tion of the person whose suicide is assisted.” 66 Fed.
Reg. 56608 (2001).
There is little dispute that the Interpretive Rule would
substantially disrupt the ODWDA regime. Respondents
contend, and petitioners do not dispute, that every pre-
scription filled under ODWDA has specified drugs classi-
fied under Schedule II. A physician cannot prescribe the
substances without DEA registration, and revocation or
suspension of the registration would be a severe restric-
tion on medical practice. Dispensing controlled substances
without a valid prescription, furthermore, is a federal
crime. See, e.g., 21 U. S. C. §841(a)(1) (2000 ed., Supp. II);
United States v. Moore, 423 U. S. 122 (1975).
In response the State of Oregon, joined by a physician, a
pharmacist, and some terminally ill patients, all from
Oregon, challenged the Interpretive Rule in federal court.
The United States District Court for the District of Oregon
entered a permanent injunction against the Interpretive
Rule’s enforcement.
A divided panel of the Court of Appeals for the Ninth
Circuit granted the petitions for review and held the In-
terpretive Rule invalid. Oregon v. Ashcroft, 368 F. 3d 1118
(2004). It reasoned that, by making a medical procedure
authorized under Oregon law a federal offense, the Inter-
pretive Rule altered the “ ‘ “usual constitutional balance
between the States and the Federal Government” ’ ” with-
out the requisite clear statement that the CSA authorized
8 GONZALES v. OREGON
Opinion of the Court
such action. Id., at 1124–1125 (quoting Gregory v.
Ashcroft, 501 U. S. 452, 460 (1991) (in turn quoting Atas-
cadero State Hospital v. Scanlon, 473 U. S. 234, 242
(1985))). The Court of Appeals held in the alternative that
the Interpretive Rule could not be squared with the plain
language of the CSA, which targets only conventional drug
abuse and excludes the Attorney General from decisions
on medical policy. 368 F. 3d, at 1125–1129.
We granted the Government’s petition for certiorari.
543 U. S. 1145 (2005).
II
Executive actors often must interpret the enactments
Congress has charged them with enforcing and imple-
menting. The parties before us are in sharp disagreement
both as to the degree of deference we must accord the
Interpretive Rule’s substantive conclusions and whether
the Rule is authorized by the statutory text at all. Al-
though balancing the necessary respect for an agency’s
knowledge, expertise, and constitutional office with the
courts’ role as interpreter of laws can be a delicate matter,
familiar principles guide us. An administrative rule may
receive substantial deference if it interprets the issuing
agency’s own ambiguous regulation. Auer v. Robbins, 519
U. S. 452, 461–463 (1997). An interpretation of an am-
biguous statute may also receive substantial deference.
Chevron U. S. A. Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U. S. 837, 842–845 (1984). Deference in
accordance with Chevron, however, is warranted only
“when it appears that Congress delegated authority to the
agency generally to make rules carrying the force of law,
and that the agency interpretation claiming deference was
promulgated in the exercise of that authority.” United
States v. Mead Corp., 533 U. S. 218, 226–227 (2001).
Otherwise, the interpretation is “entitled to respect” only
to the extent it has the “power to persuade.” Skidmore v.
Cite as: 546 U. S. ____ (2006) 9
Opinion of the Court
Swift & Co., 323 U. S. 134, 140 (1944).
A
The Government first argues that the Interpretive Rule
is an elaboration of one of the Attorney General’s own
regulations, 21 CFR §1306.04 (2005), which requires all
prescriptions be issued “for a legitimate medical purpose
by an individual practitioner acting in the usual course of
his professional practice.” As such, the Government says,
the Interpretive Rule is entitled to considerable deference
in accordance with Auer.
In our view Auer and the standard of deference it ac-
cords to an agency are inapplicable here. Auer involved a
disputed interpretation of the Fair Labor Standards Act of
1938 as applied to a class of law enforcement officers.
Under regulations promulgated by the Secretary of Labor,
an exemption from overtime pay depended, in part, on
whether the employees met the “salary basis” test. 519
U. S., at 454–455. In this Court the Secretary of Labor
filed an amicus brief explaining why, in his view, the
regulations gave exempt status to the officers. Id., at 461.
We gave weight to that interpretation, holding that be-
cause the applicable test was “a creature of the Secretary’s
own regulations, his interpretation of it is, under our
jurisprudence, controlling unless plainly erroneous or
inconsistent with the regulation. ” Ibid. (internal quota-
tion marks omitted).
In Auer, the underlying regulations gave specificity to a
statutory scheme the Secretary was charged with enforc-
ing and reflected the considerable experience and exper-
tise the Department of Labor had acquired over time with
respect to the complexities of the Fair Labor Standards
Act. Here, on the other hand, the underlying regulation
does little more than restate the terms of the statute itself.
The language the Interpretive Rule addresses comes from
Congress, not the Attorney General, and the near-
10 GONZALES v. OREGON
Opinion of the Court
equivalence of the statute and regulation belies the Gov-
ernment’s argument for Auer deference.
The Government does not suggest that its interpretation
turns on any difference between the statutory and regula-
tory language. The CSA allows prescription of drugs only
if they have a “currently accepted medical use,” 21 U. S. C.
§812(b); requires a “medical purpose” for dispensing the
least controlled substances of those on the schedules,
§829(c); and, in its reporting provision, defines a “valid
prescription” as one “issued for a legitimate medical pur-
pose,” §830(b)(3)(A)(ii). Similarly, physicians are consid-
ered to be acting as practitioners under the statute if they
dispense controlled substances “in the course of profes-
sional practice.” §802(21). The regulation uses the terms
“legitimate medical purpose” and “the course of profes-
sional practice,” ibid., but this just repeats two statutory
phrases and attempts to summarize the others. It gives
little or no instruction on a central issue in this case: Who
decides whether a particular activity is in “the course of
professional practice” or done for a “legitimate medical
purpose”? Since the regulation gives no indication how to
decide this issue, the Attorney General’s effort to decide it
now cannot be considered an interpretation of the regula-
tion. Simply put, the existence of a parroting regulation
does not change the fact that the question here is not the
meaning of the regulation but the meaning of the statute.
An agency does not acquire special authority to interpret
its own words when, instead of using its expertise and
experience to formulate a regulation, it has elected merely
to paraphrase the statutory language.
Furthermore, as explained below, if there is statutory
authority to issue the Interpretive Rule it comes from the
1984 amendments to the CSA that gave the Attorney
General authority to register and deregister physicians
based on the public interest. The regulation was enacted
before those amendments, so the Interpretive Rule cannot
Cite as: 546 U. S. ____ (2006) 11
Opinion of the Court
be justified as indicative of some intent the Attorney
General had in 1971. That the current interpretation runs
counter to the “intent at the time of the regulation’s prom-
ulgation,” is an additional reason why Auer deference is
unwarranted. Thomas Jefferson Univ. v. Shalala, 512
U. S. 504, 512 (1994) (internal quotation marks omitted).
Deference under Auer being inappropriate, we turn to the
question whether the Interpretive Rule, on its own terms,
is a permissible interpretation of the CSA.
B
Just as the Interpretive Rule receives no deference
under Auer, neither does it receive deference under Chev-
ron. If a statute is ambiguous, judicial review of adminis-
trative rulemaking often demands Chevron deference; and
the rule is judged accordingly. All would agree, we should
think, that the statutory phrase “legitimate medical pur-
pose” is a generality, susceptible to more precise definition
and open to varying constructions, and thus ambiguous in
the relevant sense. Chevron deference, however, is not
accorded merely because the statute is ambiguous and an
administrative official is involved. To begin with, the rule
must be promulgated pursuant to authority Congress has
delegated to the official. Mead, 533 U. S., at 226–227.
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.
The starting point for this inquiry is, of course, the
language of the delegation provision itself. In many cases
authority is clear because the statute gives an agency
broad power to enforce all provisions of the statute. See,
e.g., National Cable & Telecommunications Assn. v. Brand
X Internet Services, 545 U. S. ___, ___ (2005) (slip op., at 8)
12 GONZALES v. OREGON
Opinion of the Court
(explaining that a Federal Communications Commission
regulation received Chevron deference because “Congress
has delegated to the Commission the authority to . . .
‘prescribe such rules and regulations as may be necessary
in the public interest to carry out the provisions’ of the
Act” (quoting 47 U. S. C. §201(b))); Household Credit
Services, Inc. v. Pfennig, 541 U. S. 232, 238 (2004) (giving
Chevron deference to a Federal Reserve Board regulation
where “Congress has expressly delegated to the Board the
authority to prescribe regulations . . . as, in the judgment
of the Board, ‘are necessary or proper to effectuate the
purposes of’ ” the statute (quoting 15 U. S. C. §1604(a))).
The CSA does not grant the Attorney General this broad
authority to promulgate rules.
The CSA gives the Attorney General limited powers, to
be exercised in specific ways. His rulemaking authority
under the CSA is described in two provisions: (1) “The
Attorney General is authorized to promulgate rules and
regulations and to charge reasonable fees relating to the
registration and control of the manufacture, distribution,
and dispensing of controlled substances and to listed
chemicals,” 21 U. S. C. A. §821 (Supp. 2005); and (2) “The
Attorney General may promulgate and enforce any rules,
regulations, and procedures which he may deem necessary
and appropriate for the efficient execution of his functions
under this subchapter,” 21 U. S. C. §871(b). As is evident
from these sections, Congress did not delegate to the
Attorney General authority to carry out or effect all provi-
sions of the CSA. Rather, he can promulgate rules relat-
ing only to “registration” and “control,” and “for the effi-
cient execution of his functions” under the statute.
Turning first to the Attorney General’s authority to
make regulations for the “control” of drugs, this delegation
cannot sustain the Interpretive Rule’s attempt to define
standards of medical practice. Control is a term of art in
the CSA. “As used in this subchapter,” §802––the sub-
Cite as: 546 U. S. ____ (2006) 13
Opinion of the Court
chapter that includes §821––
“The term ‘control’ means to add a drug or other sub-
stance, or immediate precursor, to a schedule under
part B of this subchapter, whether by transfer from
another schedule or otherwise.” §802(5).
To exercise his scheduling power, the Attorney General
must follow a detailed set of procedures, including re-
questing a scientific and medical evaluation from the
Secretary. See 21 U. S. C. A. §§811, 812 (main ed. and
Supp. 2005). The statute is also specific as to the manner
in which the Attorney General must exercise this author-
ity: “Rules of the Attorney General under this subsection
[regarding scheduling] shall be made on the record after
opportunity for a hearing pursuant to the rulemaking
procedures prescribed by [the Administrative Procedure
Act, 5 U. S. C. §553].” 21 U. S. C. §811(a). The Interpre-
tive Rule now under consideration does not concern the
scheduling of substances and was not issued after
the required procedures for rules regarding scheduling, so
it cannot fall under the Attorney General’s “control”
authority.
Even if “control” in §821 were understood to signify
something other than its statutory definition, it would not
support the Interpretive Rule. 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. As explained below, the CSA’s express limita-
tions on the Attorney General’s authority, and other indi-
cations from the statutory scheme, belie any notion that
the Attorney General has been granted this implicit au-
thority. Indeed, if “control” were given the expansive
meaning required to sustain the Interpretive Rule, it
would transform the carefully described limits on the
14 GONZALES v. OREGON
Opinion of the Court
Attorney General’s authority over registration and sched-
uling into mere suggestions.
We turn, next, to the registration provisions of the CSA.
Before 1984, the Attorney General was required to regis-
ter any physician who was authorized by his State. The
Attorney General could only deregister a physician who
falsified his application, was convicted of a felony relating
to controlled substances, or had his state license or regis-
tration revoked. See 84 Stat. 1255. The CSA was
amended in 1984 to allow the Attorney General to deny
registration to an applicant “if he determines that the
issuance of such registration would be inconsistent with
the public interest.” 21 U. S. C. §823(f). Registration may
also be revoked or suspended by the Attorney General on
the same grounds. §824(a)(4). In determining consistency
with the public interest, the Attorney General must, as
discussed above, consider five factors, including: the
State’s recommendation; compliance with state, federal,
and local laws regarding controlled substances; and public
health and safety. §823(f).
The Interpretive Rule cannot be justified under this part
of the statute. It does not undertake the five-factor analy-
sis and concerns much more than registration. Nor does
the Interpretive Rule on its face purport to be an applica-
tion of the registration provision in §823(f). It is, instead,
an interpretation of the substantive federal law require-
ments (under 21 CFR §1306.04 (2005)) for a valid pre-
scription. It begins by announcing that assisting suicide is
not a “legitimate medical purpose” under §1306.04, and
that dispensing controlled substances to assist a suicide
violates the CSA. 66 Fed. Reg. 56608 (2001). Violation is
a criminal offense, and often a felony, under 21 U. S. C.
§841 (2000 ed. and Supp. II). 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
Cite as: 546 U. S. ____ (2006) 15
Opinion of the Court
to register or deregister.
The Attorney General’s deregistration power, of course,
may carry implications for criminal enforcement because if
a physician dispenses a controlled substance after he is
deregistered, he violates §841. The Interpretive Rule
works in the opposite direction, however: it declares cer-
tain conduct criminal, placing in jeopardy the registration
of any physician who engages in that conduct. To the
extent the Interpretive Rule concerns registration, it
simply states the obvious because one of the five factors
the Attorney General must consider in deciding the “public
interest” is “[c]ompliance with applicable State, Federal,
or local laws relating to controlled substances.” 21 U. S. C.
§823(f)(4). The problem with the design of the Interpre-
tive Rule is that it cannot, and does not, explain why the
Attorney General has the authority to decide what consti-
tutes an underlying violation of the CSA in the first place.
The explanation the Government seems to advance is that
the Attorney General’s authority to decide whether a
physician’s actions are inconsistent with the “public inter-
est” provides the basis for the Interpretive Rule.
By this logic, however, the Attorney General claims
extraordinary authority. If the Attorney General’s argu-
ment were correct, his power to deregister necessarily
would include the greater power to criminalize even the
actions of registered physicians, whenever they engage in
conduct he deems illegitimate. This power to criminal-
ize—unlike his power over registration, which must be
exercised only after considering five express statutory
factors—would be unrestrained. It would be anomalous
for Congress to have so painstakingly described the Attor-
ney 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. See Federal
16 GONZALES v. OREGON
Opinion of the Court
Maritime Comm’n v. Seatrain Lines, Inc., 411 U. S. 726,
744 (1973) (“In light of these specific grants of . . . author-
ity, we are unwilling to construe the ambiguous provisions
. . . to serve this purpose [of creating further authority]—a
purpose for which it obviously was not intended”).
Sutton v. United Air Lines, Inc., 527 U. S. 471 (1999), is
instructive. The statute at issue was the Americans with
Disabilities Act of 1990 (ADA), which, like the CSA, di-
vides interpretive authority among various Executive
actors. The Court relied on “the terms and structure of
the ADA” to decide that neither the Equal Employment
Opportunity Commission, nor any other agency had au-
thority to define “disability” in the ADA. Id., at 479.
Specifically, the delegating provision stated that the
EEOC “shall issue regulations . . . to carry out this sub-
chapter,” 42 U. S. C. §12116, and the section of the statute
defining “disability” was in a different subchapter. The
Court did not accept the idea that because “the employ-
ment subchapter, i.e., ‘this subchapter,’ includes other
provisions that use the defined terms, . . . [t]he EEOC
might elaborate, through regulations, on the meaning of
‘disability’ . . . if elaboration is needed in order to ‘carry
out’ the substantive provisions of ‘this subchapter.’ ” 527
U. S., at 514 (BREYER, J., dissenting). See also Adams
Fruit Co. v. Barrett, 494 U. S. 638, 649–650 (1990) (hold-
ing that a delegation of authority to promulgate motor
vehicle safety “standards” did not include the authority to
decide the pre-emptive scope of the federal statute because
“[n]o such delegation regarding [the statute’s] enforcement
provisions is evident in the statute”).
The same principle controls here. 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. The statutory
terms “public interest” and “public health” do not call on
the Attorney General, or any other Executive official, to
Cite as: 546 U. S. ____ (2006) 17
Opinion of the Court
make an independent assessment of the meaning of fed-
eral law. The Attorney General did not base the Interpre-
tive Rule on an application of the five-factor test generally,
or the “public health and safety” factor specifically. Even
if he had, it is doubtful the Attorney General could cite the
“public interest” or “public health” to deregister a physi-
cian 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 authorita-
tively interpret “State” and “local laws,” which are also
included in 21 U. S. C. §823(f), despite the obvious consti-
tutional problems in his doing so. Just as he must evalu-
ate compliance with federal law in deciding about registra-
tion, the Attorney General must as surely evaluate
compliance with federal law in deciding whether to prose-
cute; but this does not entitle him to Chevron deference.
See Crandon v. United States, 494 U. S. 152, 177 (1990)
(SCALIA, J., concurring in judgment) (“The Justice De-
partment, 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”).
The limits on the Attorney General’s authority to define
medical standards for the care and treatment of patients
bear also on the proper interpretation of §871(b). This
section allows the Attorney General to best determine how
to execute “his functions.” It is quite a different matter,
however, to say that the Attorney General can define the
substantive standards of medical practice as part of his
authority. To find a delegation of this extent in §871
would put that part of the statute in considerable tension
18 GONZALES v. OREGON
Opinion of the Court
with the narrowly defined delegation concerning control
and registration. It would go, moreover, against the plain
language of the text to treat a delegation for the “execu-
tion” of his functions as a further delegation to define
other functions well beyond the statute’s specific grants of
authority. When Congress chooses to delegate a power of
this extent, it does so not by referring back to the adminis-
trator’s functions but by giving authority over the provi-
sions of the statute he is to interpret. See, e.g., National
Cable & Telecommunications Assn., 545 U. S. ___; House-
hold Credit Services, 541 U. S. 232.
The authority desired by the Government is inconsistent
with the design of the statute in other fundamental re-
spects. The Attorney General does not have the sole dele-
gated authority under the CSA. He must instead share it
with, and in some respects defer to, the Secretary, whose
functions are likewise delineated and confined by the
statute. The CSA allocates decisionmaking powers among
statutory actors so that medical judgments, if they are to
be decided at the federal level and for the limited objects of
the statute, are placed in the hands of the Secretary. In
the scheduling context, for example, the Secretary’s rec-
ommendations on scientific and medical matters bind the
Attorney General. The Attorney General cannot control a
substance if the Secretary disagrees. 21 U. S. C. §811(b).
See H. R. Rep. No. 91–1444, pt. 1, p. 33 (1970) (the section
“is not intended to authorize the Attorney General to
undertake or support medical and scientific research [for
the purpose of scheduling], which is within the competence
of the Department of Health, Education, and Welfare”).
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
Cite as: 546 U. S. ____ (2006) 19
Opinion of the Court
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 (noting that in enacting the addic-
tion-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 en-
forcement 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”).
Post enactment congressional commentary on the CSA’s
regulation of medical practice is also at odds with the
Attorney General’s claimed authority to determine appro-
priate medical standards. In 1978, in preparation for
ratification of the Convention on Psychotropic Substances,
Feb. 21, 1971, [1979–1980] 32 U. S. T. 543, T. I. A. S. No.
9725, Congress decided it would implement the United
States’ compliance through “the framework of the proce-
dures and criteria for classification of substances provided
in the” CSA. 21 U. S. C. §801a(3). It did so to ensure that
“nothing in the Convention will interfere with ethical
medical practice in this country as determined by [the
Secretary] on the basis of a consensus of the views of the
American medical and scientific community.” Ibid.
The structure of the CSA, then, conveys unwillingness
to cede medical judgments to an Executive official who
lacks medical expertise. In interpreting statutes that
divide authority, the Court has recognized: “Because
20 GONZALES v. OREGON
Opinion of the Court
historical familiarity and policymaking expertise account
in the first instance for the presumption that Congress
delegates interpretive lawmaking power to the agency
rather than to the reviewing court, we presume here that
Congress intended to invest interpretive power in the
administrative actor in the best position to develop these
attributes.” Martin v. Occupational Safety and Health
Review Comm’n, 499 U. S. 144, 153 (1991) (citations omit-
ted). This presumption works against a conclusion that
the Attorney General has authority to make quintessen-
tially medical judgments.
The Government contends the Attorney General’s deci-
sion here is a legal, not a medical, one. This generality,
however, does not suffice. The Attorney General’s Inter-
pretive Rule, and the Office of Legal Counsel memo it
incorporates, place extensive reliance on medical judg-
ments and the views of the medical community in conclud-
ing that assisted suicide is not a “legitimate medical pur-
pose.” See 66 Fed. Reg. 56608 (noting the “medical”
distinctions between assisting suicide and giving sufficient
medication to alleviate pain); Memorandum from Office of
Legal Counsel to Attorney General (June 27, 2001), App.
to Pet. for Cert. 121a–122a, and n. 17 (discussing the
“Federal medical policy” against physician-assisted sui-
cide), id., at 124a–130a (examining views of the medical
community). This confirms that the authority claimed by
the Attorney General is both beyond his expertise and
incongruous with the statutory purposes and design.
The idea that Congress gave the Attorney General such
broad and unusual authority through an implicit delega-
tion in the CSA’s registration provision is not sustainable.
“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.” Whitman v. American Trucking Assns., Inc.,
531 U. S. 457, 468 (2001); see FDA v. Brown & Williamson
Cite as: 546 U. S. ____ (2006) 21
Opinion of the Court
Tobacco Corp., 529 U. S. 120, 160 (2000) (“[W]e are confi-
dent that Congress could not have intended to delegate a
decision of such economic and political significance to an
agency in so cryptic a fashion”).
The importance of the issue of physician-assisted sui-
cide, which has been the subject of an “earnest and pro-
found debate” across the country, Glucksberg, 521 U. S., at
735, makes the oblique form of the claimed delegation all
the more suspect. Under the Government’s theory, more-
over, the medical judgments the Attorney General could
make are not limited to physician-assisted suicide. Were
this argument accepted, he could decide whether any
particular drug may be used for any particular purpose, or
indeed whether a physician who administers any contro-
versial treatment could be deregistered. This would occur,
under the Government’s view, despite the statute’s ex-
press limitation of the Attorney General’s authority to
registration and control, with attendant restrictions on
each of those functions, and despite the statutory purposes
to combat drug abuse and prevent illicit drug trafficking.
We need not decide whether Chevron deference would be
warranted for an interpretation issued by the Attorney
General concerning matters closer to his role under the
CSA, namely preventing doctors from engaging in illicit
drug trafficking. In light of the foregoing, however, the
CSA does not give the Attorney General authority to issue
the Interpretive Rule as a statement with the force of law.
If, in the course of exercising his authority, the Attorney
General uses his analysis in the Interpretive Rule only for
guidance in deciding when to prosecute or deregister, then
the question remains whether his substantive interpreta-
tion is correct. Since the Interpretive Rule was not prom-
ulgated pursuant to the Attorney General’s authority, its
interpretation of “legitimate medical purpose” does not
receive Chevron deference. Instead, it receives deference
only in accordance with Skidmore. “The weight of such a
22 GONZALES v. OREGON
Opinion of the Court
judgment in a particular case will depend upon the thor-
oughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pro-
nouncements, and all those factors which give it power to
persuade, if lacking power to control.” 323 U. S., at 140;
see also Mead, 533 U. S., at 235 (noting that an opinion
receiving Skidmore deference may “claim the merit of its
writer’s thoroughness, logic, and expertness, its fit with
prior interpretations, and any other sources of weight”).
The deference here is tempered by the Attorney General’s
lack of expertise in this area and the apparent absence of
any consultation with anyone outside the Department of
Justice who might aid in a reasoned judgment. In any
event, under Skidmore, we follow an agency’s rule only to
the extent it is persuasive, see Christensen v. Harris
County, 529 U. S. 576, 587 (2000); and for the reasons given
and for further reasons set out below, we do not find the
Attorney General’s opinion persuasive.
III
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 ___ (slip op., at 9). In doing
so, Congress sought to “conquer drug abuse and to control
the legitimate and illegitimate traffic in controlled sub-
stances.” 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. 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 (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,
Cite as: 546 U. S. ____ (2006) 23
Opinion of the Court
“concede[d] in his brief that he did not observe generally
accepted medical practices.” 423 U. S., at 126. And in
United States v. Oakland Cannabis Buyers’ Cooperative,
532 U. S. 483 (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.
In deciding whether the CSA can be read as prohibiting
physician-assisted suicide, we look to the statute’s text
and design. 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 silence is under-
standable given the structure and limitations of federal-
ism, which allow the States “ ‘great latitude under their
police powers to legislate as to the protection of the lives,
limbs, health, comfort, and quiet of all persons.’ ” Med-
tronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996) (quoting Met-
ropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 756
(1985)).
The structure and operation of the CSA presume and
rely upon a functioning medical profession regulated
under the States’ police powers. The Attorney General
can register a physician to dispense controlled substances
“if the applicant is authorized to dispense . . . controlled
substances under the laws of the State in which he prac-
tices.” 21 U. S. C. §823(f). When considering whether to
revoke a physician’s registration, the Attorney General
looks not just to violations of federal drug laws; but he
“shall” also consider “[t]he recommendation of the appro-
priate state licensing board or professional disciplinary
authority” and the registrant’s compliance with state and
local drug laws. Ibid. The very definition of a “practitio-
24 GONZALES v. OREGON
Opinion of the Court
ner” eligible to prescribe includes physicians “licensed,
registered, or otherwise permitted, by the United States or
the jurisdiction in which he practices” to dispense con-
trolled substances. §802(21). Further cautioning against
the conclusion that the CSA effectively displaces the
States’ general regulation of medical practice is the Act’s
pre-emption provision, which indicates that, absent a
positive conflict, none of the Act’s provisions should be
“construed as indicating an intent on the part of the Con-
gress to occupy the field in which that provision operates
. . . to the exclusion of any State law on the same subject
matter which would otherwise be within the authority of
the State.” §903.
Oregon’s regime is an example of the state regulation of
medical practice that the CSA presupposes. Rather than
simply decriminalizing assisted suicide, ODWDA limits its
exercise to the attending physicians of terminally ill pa-
tients, physicians who must be licensed by Oregon’s Board
of Medical Examiners. Ore. Rev. Stat. §§127.815,
127.800(10) (2003). The statute gives attending physi-
cians a central role, requiring them to provide prognoses
and prescriptions, give information about palliative alter-
natives and counseling, and ensure patients are competent
and acting voluntarily. §127.815. Any eligible patient
must also get a second opinion from another registered
physician, §127.820, and the statute’s safeguards require
physicians to keep and submit to inspection detailed re-
cords of their actions, §§127.855, 127.865.
Even though regulation of health and safety is “primar-
ily, and historically, a matter of local concern,” Hillsbor-
ough County v. Automated Medical Laboratories, Inc., 471
U. S. 707, 719 (1985), there is no question that the Federal
Government can set uniform national standards in these
areas. See Raich, supra, at ___ (slip op., at 6). In connec-
tion to the CSA, however, we find only one area in which
Congress set general, uniform standards of medical prac-
Cite as: 546 U. S. ____ (2006) 25
Opinion of the Court
tice. Title I of the Comprehensive Drug Abuse Prevention
and Control Act of 1970, of which the CSA was Title II,
provides that
“[The Secretary], after consultation with the Attorney
General and with national organizations representa-
tive of persons with knowledge and experience in the
treatment of narcotic addicts, shall determine the ap-
propriate methods of professional practice in the
medical treatment of the narcotic addiction of various
classes of narcotic addicts, and shall report thereon
from time to time to the Congress.” §4, 84 Stat. 1241,
codified at 42 U. S. C. §290bb–2a.
This provision strengthens the understanding of the CSA
as a statute combating recreational drug abuse, and also
indicates that when Congress wants to regulate medical
practice in the given scheme, it does so by explicit lan-
guage in the statute.
In the face of the CSA’s silence on the practice of medi-
cine generally and its recognition of state regulation of the
medical profession it is difficult to defend the Attorney
General’s declaration that the statute impliedly criminal-
izes physician-assisted suicide. This difficulty is com-
pounded by the CSA’s consistent delegation of medical
judgments to the Secretary and its otherwise careful
allocation of powers for enforcing the limited objects of the
CSA. See Part II–B, supra. The Government’s attempt to
meet this challenge rests, for the most part, on the CSA’s
requirement that every Schedule II drug be dispensed
pursuant to a “written prescription of a practitioner.” 21
U. S. C. §829(a). A prescription, the Government argues,
necessarily implies that the substance is being made
available to a patient for a legitimate medical purpose.
The statute, in this view, requires an anterior judgment
about the term “medical” or “medicine.” The Government
contends ordinary usage of these words ineluctably refers
26 GONZALES v. OREGON
Opinion of the Court
to a healing or curative art, which by these terms cannot
embrace the intentional hastening of a patient’s death. It
also points to the teachings of Hippocrates, the positions of
prominent medical organizations, the Federal Government,
and the judgment of the 49 States that have not legalized
physician-assisted suicide as further support for the propo-
sition that the practice is not legitimate medicine. See Brief
for Petitioners 22–24; Memorandum from Office of Legal
Counsel to Attorney General, App. to Pet. for Cert. 124a–
130a.
On its own, this understanding of medicine’s boundaries
is at least reasonable. The primary problem with the
Government’s argument, however, is its assumption that
the CSA impliedly authorizes an Executive officer to bar a
use simply because it may be inconsistent with one rea-
sonable understanding of medical practice. Viewed alone,
the prescription requirement may support such an under-
standing, but statutes “should not be read as a series of
unrelated and isolated provisions.” Gustafson v. Alloyd
Co., 513 U. S. 561, 570 (1995). The CSA’s substantive
provisions and their arrangement undermine this as-
sertion of an expansive federal authority to regulate
medicine.
The statutory criteria for deciding what substances are
controlled, determinations which are central to the Act,
consistently connect the undefined term “drug abuse” with
addiction or abnormal effects on the nervous system.
When the Attorney General schedules drugs, he must
consider a substance’s psychic or physiological dependence
liability. 21 U. S. C. §811(c)(7). To classify a substance in
Schedules II through V, the Attorney General must find
abuse of the drug leads to psychological or physical de-
pendence. §812(b). Indeed, the differentiation of Sched-
ules II through V turns in large part on a substance’s
habit-forming potential: The more addictive a substance,
the stricter the controls. Ibid. When Congress wanted to
Cite as: 546 U. S. ____ (2006) 27
Opinion of the Court
extend the CSA’s regulation to substances not obviously
habit forming or psychotropic, moreover, it relied not on
Executive ingenuity, but rather on specific legislation. See
§1902(a) of the Anabolic Steroids Control Act of 1990, 104
Stat. 4851 (placing anabolic steroids in Schedule III).
The statutory scheme with which the CSA is inter-
twined further confirms a more limited understanding of
the prescription requirement. When the Secretary consid-
ers FDA approval of a substance with “stimulant, depres-
sant, or hallucinogenic effect,” he must forward the infor-
mation to the Attorney General for possible scheduling.
Shedding light on Congress’ understanding of drug abuse,
this requirement appears under the heading “Abuse po-
tential.” 21 U. S. C. §811(f). Similarly, when Congress
prepared to implement the Convention on Psychotropic
Substances, it did so through the CSA. §801a.
The Interpretive Rule rests on a reading of the prescrip-
tion requirement that is persuasive only to the extent one
scrutinizes the provision without the illumination of the
rest of the statute. See Massachusetts v. Morash, 490
U. S. 107, 114–115 (1989). Viewed in its context, the
prescription requirement is better understood as a provi-
sion that ensures patients use controlled substances under
the supervision of a doctor so as to prevent addiction and
recreational abuse. As a corollary, the provision also bars
doctors from peddling to patients who crave the drugs for
those prohibited uses. See Moore, 423 U. S., at 135, 143.
To read prescriptions for assisted suicide as constituting
“drug abuse” under the CSA is discordant with the
phrase’s consistent use throughout the statute, not to
mention its ordinary meaning.
The Government’s interpretation of the prescription
requirement also fails under the objection that the Attorney
General is an unlikely recipient of such broad authority,
given the Secretary’s primacy in shaping medical policy
under the CSA, and the statute’s otherwise careful alloca-
28 GONZALES v. OREGON
Opinion of the Court
tion of decisionmaking powers. Just as the conventions of
expression indicate that Congress is unlikely to alter a
statute’s obvious scope and division of authority through
muffled hints, the background principles of our federal
system also belie the notion that Congress would use such
an obscure grant of authority to regulate areas tradition-
ally supervised by the States’ police power. It is unneces-
sary even to consider the application of clear statement
requirements, see, e.g., United States v. Bass, 404 U. S. 336,
349 (1971); cf. BFP v. Resolution Trust Corporation, 511
U. S. 531, 544–546 (1994), or presumptions against pre-
emption, see, e.g., Rush Prudential HMO, Inc. v. Moran, 536
U. S. 355, 387 (2002), to reach this commonsense conclusion.
For all these reasons, we conclude the CSA’s prescription
requirement does not authorize the Attorney General to
bar dispensing controlled substances for assisted suicide
in the face of a state medical regime permitting such
conduct.
IV
The Government, in the end, maintains that the pre-
scription requirement delegates to a single Executive
officer the power to effect a radical shift of authority from
the States to the Federal Government to define general
standards of medical practice in every locality. The text
and structure of the CSA show that Congress did not have
this far-reaching intent to alter the federal-state balance
and the congressional role in maintaining it.
The judgment of the Court of Appeals is
Affirmed.
Cite as: 546 U. S. ____ (2006) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–623
_________________
ALBERTO R. GONZALES, ATTORNEY GENERAL,
ET AL., PETITIONERS v. OREGON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 17, 2006]
JUSTICE SCALIA, with whom CHIEF JUSTICE ROBERTS
and JUSTICE THOMAS join, dissenting.
The Court concludes that the Attorney General lacked
authority to declare assisted suicide illicit under the Con-
trolled Substances Act (CSA), because the CSA is con-
cerned only with “illicit drug dealing and trafficking,”
ante, at 23 (emphasis added). This question-begging
conclusion is obscured by a flurry of arguments that dis-
tort the statute and disregard settled principles of our
interpretive jurisprudence.
Contrary to the Court’s analysis, this case involves not
one but three independently sufficient grounds for revers-
ing the Ninth Circuit’s judgment. First, the Attorney
General’s interpretation of “legitimate medical purpose” in
21 CFR §1306.04 (2005) (hereinafter Regulation) is clearly
valid, given the substantial deference we must accord it
under Auer v. Robbins, 519 U. S. 452, 461 (1997), and his
two remaining conclusions follow naturally from this
interpretation. See Part I, infra. Second, even if this
interpretation of the Regulation is entitled to lesser defer-
ence or no deference at all, it is by far the most natural
interpretation of the Regulation—whose validity is not
challenged here. This interpretation is thus correct even
upon de novo review. See Part II, infra. Third, even if
that interpretation of the Regulation were incorrect, the
2 GONZALES v. OREGON
SCALIA, J., dissenting
Attorney General’s independent interpretation of the
statutory phrase “public interest” in 21 U. S. C. §§824(a)
and 823(f), and his implicit interpretation of the statutory
phrase “public health and safety” in §823(f)(5), are entitled
to deference under Chevron U. S. A. Inc. v. Natural Re-
sources Defense Council, Inc., 467 U. S. 837 (1984), and
they are valid under Chevron. See Part III, infra. For
these reasons, I respectfully dissent.
I
The Interpretive Rule issued by the Attorney General
(hereinafter Directive) provides in relevant part as follows:
“For the reasons set forth in the OLC Opinion, I
hereby determine that assisting suicide is not a ‘le-
gitimate medical purpose’ within the meaning of 21
CFR §1306.04 (2001), and that prescribing, dispens-
ing, or administering federally controlled substances
to assist suicide violates the CSA. Such conduct by a
physician registered to dispense controlled substances
may ‘render his registration . . . inconsistent with the
public interest’ and therefore subject to possible sus-
pension or revocation under 21 U. S. C. [§]824(a)(4).”
66 Fed. Reg. 56608 (2001).
The Directive thus purports to do three distinct things: (1)
to interpret the phrase “legitimate medical purpose” in the
Regulation to exclude physician-assisted suicide; (2) to
determine that prescribing, dispensing, and administering
federally controlled substances to assist suicide violates
the CSA; and (3) to determine that participating in physi-
cian-assisted suicide may render a practitioner’s registra-
tion “inconsistent with the public interest” within the
meaning of 21 U. S. C. §§823(f) and 824(a)(4) (which in-
corporates §823(f) by reference). The Court’s analysis
suffers from an unremitting failure to distinguish among
these distinct propositions in the Directive.
Cite as: 546 U. S. ____ (2006) 3
SCALIA, J., dissenting
As an initial matter, the validity of the Regulation’s
interpretation of “prescription” in §829 to require a “le-
gitimate medical purpose” is not at issue. Respondents
conceded the validity of this interpretation in the lower
court, see Oregon v. Ashcroft, 368 F. 3d 1118, 1133 (CA9
2004), and they have not challenged it here. By its asser-
tion that the Regulation merely restates the statutory
standard of 21 U. S. C. §830(b)(3)(A)(ii), see ante, at 10,
the Court likewise accepts that the “legitimate medical
purpose” interpretation for prescriptions is proper. See
also ante, at 11 (referring to “legitimate medical purpose”
as a “statutory phrase”). It is beyond dispute, then, that a
“prescription” under §829 must issue for a “legitimate
medical purpose.”
A
Because the Regulation was promulgated by the Attor-
ney General, and because the Directive purported to in-
terpret the language of the Regulation, see 66 Fed. Reg.
56608, this case calls for the straightforward application of
our rule that an agency’s interpretation of its own regula-
tions is “controlling unless plainly erroneous or inconsis-
tent with the regulation.” Auer, supra, at 461 (internal
quotation marks omitted). The Court reasons that Auer is
inapplicable because the Regulation “does little more than
restate the terms of the statute itself.” Ante, at 9. “Simply
put,” the Court asserts, “the existence of a parroting regu-
lation does not change the fact that the question here is
not the meaning of the regulation but the meaning of the
statute.” Ante, at 10.
To begin with, it is doubtful that any such exception to
the Auer rule exists. The Court cites no authority for it,
because there is none. To the contrary, our unanimous
decision in Auer makes clear that broadly drawn regula-
tions are entitled to no less respect than narrow ones. “A
rule requiring the Secretary to construe his own regula-
4 GONZALES v. OREGON
SCALIA, J., dissenting
tions narrowly would make little sense, since he is free to
write the regulations as broadly as he wishes, subject only
to the limits imposed by the statute.” 519 U. S., at 463
(emphasis added).
Even if there were an antiparroting canon, however, it
would have no application here. The Court’s description of
21 CFR §1306.04 (2005) as a regulation that merely “para-
phrase[s] the statutory language,” ante, at 10, is demon-
strably false. In relevant part, the Regulation interprets
the word “prescription” as it appears in 21 U. S. C. §829,
which governs the dispensation of controlled substances
other than those on Schedule I (which may not be dis-
pensed at all). Entitled “[p]rescriptions,” §829 requires,
with certain exceptions not relevant here, “the written
prescription of a practitioner” (usually a medical doctor)
for the dispensation of Schedule II substances (§829(a)), “a
written or oral prescription” for substances on Schedules
III and IV (§829(b)), and no prescription but merely a
“medical purpose” for the dispensation of Schedule V
substances (§829(c)).
As used in this section, “prescription” is susceptible of at
least three reasonable interpretations. First, it might
mean any oral or written direction of a practitioner for the
dispensation of drugs. See United States v. Moore, 423
U. S. 122, 137, n. 13 (1975) (“On its face §829 addresses
only the form that a prescription must take. . . . [Section]
829 by its terms does not limit the authority of a practitio-
ner”). Second, in light of the requirement of a “medical
purpose” for the dispensation of Schedule V substances,
see §829(c), it might mean a practitioner’s oral or written
direction for the dispensation of drugs that the practitio-
ner believes to be for a legitimate medical purpose. See
Webster’s New International Dictionary 1954 (2d ed. 1950)
(hereinafter Webster’s Second) (defining “prescription” as
“[a] written direction for the preparation and use of a
medicine”); id., at 1527 (defining “medicine” as “[a]ny
Cite as: 546 U. S. ____ (2006) 5
SCALIA, J., dissenting
substance or preparation used in treating disease”) (em-
phases added). Finally, “prescription” might refer to a
practitioner’s direction for the dispensation of drugs that
serves an objectively legitimate medical purpose, regard-
less of the practitioner’s subjective judgment about the
legitimacy of the anticipated use. See ibid.
The Regulation at issue constricts or clarifies the stat-
ute by adopting the last and narrowest of these three
possible interpretations of the undefined statutory term:
“A prescription for a controlled substance to be effective
must be issued for a legitimate medical purpose . . . .” 21
CFR §1306.04(a) (2005). We have previously acknowl-
edged that the Regulation gives added content to the text
of the statute: “The medical purpose requirement explicit
in subsection (c) [of §829] could be implicit in subsections
(a) and (b). Regulation §[1]306.04 makes it explicit.” Moore,
supra, at 137, n. 13.1
The Court points out that the Regulation adopts some of
the phrasing employed in unrelated sections of the stat-
ute. See ante, at 10. This is irrelevant. A regulation that
significantly clarifies the meaning of an otherwise am-
biguous statutory provision is not a “parroting” regulation,
regardless of the sources that the agency draws upon for
the clarification. Moreover, most of the statutory phrases
that the Court cites as appearing in the Regulation, see
ibid. (citing 21 U. S. C. §§812(b) (“ ‘currently accepted
medical use’ ”), 829(c) (“ ‘medical purpose’ ”), 802(21) (“ ‘in
the course of professional practice’ ”)), are inapposite be-
——————
1 To be sure, this acknowledgment did not go far enough, because it
overlooked the significance of the word “legitimate,” which is most
naturally understood to create an objective, federal standard for appro-
priate medical uses. See Mississippi Band of Choctaw Indians v.
Holyfield, 490 U. S. 30, 43 (1989) (“We start . . . with the general as-
sumption that in the absence of a plain indication to the contrary, . . .
Congress when it enacts a statute is not making the application of the
federal act dependent on state law” (internal quotation marks omitted)).
6 GONZALES v. OREGON
SCALIA, J., dissenting
cause they do not “parrot” the only phrase in the Regula-
tion that the Directive purported to construe. See 66 Fed.
Reg. 56608 (“I hereby determine that assisting suicide is
not a ‘legitimate medical purpose’ within the meaning of
21 CFR §1306.04 . . .”). None of them includes the key
word “legitimate,” which gives the most direct support to
the Directive’s theory that §829(c) presupposes a uniform
federal standard of medical practice.2
Since the Regulation does not run afowl (so to speak) of
the Court’s newly invented prohibition of “parroting”; and
since the Directive represents the agency’s own interpre-
tation of that concededly valid regulation; the only ques-
tion remaining is whether that interpretation is “plainly
erroneous or inconsistent with the regulation”; otherwise,
it is “controlling.” Auer, supra, at 461 (internal quotation
marks omitted). This is not a difficult question. The
Directive is assuredly valid insofar as it interprets “pre-
scription” to require a medical purpose that is “legitimate”
as a matter of federal law—since that is an interpretation
of “prescription” that we ourselves have adopted. Webb v.
United States, 249 U. S. 96 (1919), was a prosecution
——————
2 The only place outside 21 U. S. C. §801 in which the statute uses the
phrase “legitimate medical purpose” is in defining the phrase “valid
prescription” for purposes of the reporting requirements that apply to
mail orders of regulated substances. See §830(b)(3)(A)(ii). The Regula-
tion did not “parrot” this statutory section, because the Regulation was
adopted in 1971 and the statutory language was added in 2000. See
Brief for Petitioners 17 (citing the Children’s Health Act of 2000, §3652,
114 Stat. 1239, 21 U. S. C. §830(b)(3)). But even if the statutory lan-
guage had predated the Regulation, there would be no “parroting” of
that phrase. In using the word “prescription” without definition in the
much more critical §829, Congress left the task of resolving any ambi-
guity in that word, used in that context, to the relevant Executive
officer. That the officer did so by deeming relevant a technically
inapplicable statutory definition contained elsewhere in the statute
does not make him a parrot. He has given to the statutory text a
meaning it did not explicitly—and perhaps even not necessarily—
contain.
Cite as: 546 U. S. ____ (2006) 7
SCALIA, J., dissenting
under the Harrison Act of a doctor who wrote prescrip-
tions of morphine “for the purpose of providing the user
with morphine sufficient to keep him comfortable by main-
taining his customary use,” id., at 99. The dispositive
issue in the case was whether such authorizations were
“prescriptions” within the meaning of §2(b) of the Harrison
Act, predecessor to the CSA. Ibid. We held that “to call
such an order for the use of morphine a physician’s pre-
scription would be so plain a perversion of meaning that
no discussion of the subject is required.” Id., at 99–100.
Like the Directive, this interprets “prescription” to require
medical purpose that is legitimate as a matter of federal
law. And the Directive is also assuredly valid insofar as it
interprets “legitimate medical purpose” as a matter of
federal law to exclude physician-assisted suicide, because
that is not only a permissible but indeed the most natural
interpretation of that phrase. See Part II, infra.
B
Even if the Regulation merely parroted the statute, and
the Directive therefore had to be treated as though it
construed the statute directly, see ante, at 11, the Direc-
tive would still be entitled to deference under Chevron.
The Court does not take issue with the Solicitor General’s
contention that no alleged procedural defect, such as the
absence of notice-and-comment rulemaking before prom-
ulgation of the Directive, renders Chevron inapplicable
here. See Reply Brief for Petitioners 4 (citing Barnhart v.
Walton, 535 U. S. 212, 219–222 (2002); 5 U. S. C. §553(b)(3)(A)
(exempting interpretive rules from notice-and-comment
rulemaking)). Instead, the Court holds that the Attorney
General lacks interpretive authority to issue the Directive
at all, on the ground that the explicit delegation provision,
21 U. S. C. A. §821 (Supp. 2005), limits his rulemaking
authority to “registration and control,” which (according to
the Court) are not implicated by the Directive’s interpreta-
8 GONZALES v. OREGON
SCALIA, J., dissenting
tion of the prescription requirement. See ante, at 12–14.
Setting aside the implicit delegation inherent in Con-
gress’s use of the undefined term “prescription” in §829,
the Court’s reading of “control” in §821 is manifestly erro-
neous. The Court urges, ante, at 12–13, that “control” is a
term defined in part A of the subchapter (entitled “Intro-
ductory Provisions”) to mean “to add a drug or other sub-
stance . . . to a schedule under part B of this subchapter,”
21 U. S. C. §802(5) (emphasis added). But §821 is not
included in “part B of this subchapter,” which is entitled
“Authority to Control; Standards and Schedules,” and
consists of the sections related to scheduling, 21
U. S. C. A. §§811–814 (main ed. and Supp. 2005), where
the statutory definition is uniquely appropriate. Rather,
§821 is found in part C of the subchapter, §§821–830,
entitled “Registration of Manufacturers, Distributors, and
Dispensers of Controlled Substances,” which includes all
and only the provisions relating to the “manufacture,
distribution, and dispensing of controlled substances,”
§821. The artificial definition of “control” in §802(5) has
no conceivable application to the use of that word in §821.
Under that definition, “control” must take a substance as
its direct object, see 21 U. S. C. §802(5) (“to add a drug or
other substance . . . to a schedule”)—and that is how “con-
trol” is consistently used throughout part B. See, e.g.,
§§811(b) (“proceedings . . . to control a drug or other sub-
stance”), 811(c) (“each drug or other substance proposed to
be controlled or removed from the schedules”), 811(d)(1)
(“If control is required . . . the Attorney General shall issue
an order controlling such drug . . .”), 812(b) (“Except where
control is required . . . a drug or other substance may not
be placed in any schedule . . .”). In §821, by contrast, the
term “control” has as its object, not “a drug or other sub-
stance,” but rather the processes of “manufacture, distri-
bution, and dispensing of controlled substances.” It could
not be clearer that the artificial definition of “control” in
Cite as: 546 U. S. ____ (2006) 9
SCALIA, J., dissenting
§802(5) is inapplicable. It makes no sense to speak of
“adding the manufacturing, distribution, and dispensing of
substances to a schedule.” We do not force term-of-art
definitions into contexts where they plainly do not fit and
produce nonsense. What is obviously intended in §821 is
the ordinary meaning of “control”—namely, “[t]o exercise
restraining or directing influence over; to dominate; regu-
late; hence, to hold from action; to curb,” Webster’s Second
580. “Control” is regularly used in this ordinary sense
elsewhere in part C of the subchapter. See, e.g., 21
U. S. C. §§823(a)(1), (b)(1), (d)(1), (e)(1), (h)(1) (“mainte-
nance of effective controls against diversion”); §§823(a)(5),
(d)(5) (“establishment of effective control against diver-
sion”); §823(g)(2)(H)(i) (“to exercise supervision or control
over the practice of medicine”); §830(b)(1)(C) (“a listed
chemical under the control of the regulated person”);
§830(c)(2)(D) (“chemical control laws”) (emphases added).
When the word is given its ordinary meaning, the At-
torney General’s interpretation of the prescription re-
quirement of §829 plainly “relat[es] to the . . . control of
the . . . dispensing of controlled substances,” 21 U. S. C. A.
§821 (Supp. 2005) (emphasis added), since a prescription
is the chief requirement for “dispensing” such drugs, see
§829. The same meaning is compelled by the fact that
§821 is the first section not of part B of the subchapter,
which deals entirely with “control” in the artificial sense,
but of part C, every section of which relates to the “regis-
tration and control of the manufacture, distribution, and
dispensing of controlled substances,” §821. See §§822
(persons required to register), 823 (registration require-
ments), 824 (denial, revocation, or suspension of registra-
tion), 825 (labeling and packaging), 826 (production quotas
for controlled substances), 827 (recordkeeping and report-
ing requirements of registrants), 828 (order forms), 829
(prescription requirements), 830 (regulation of listed
chemicals and certain machines). It would be peculiar for
10 GONZALES v. OREGON
SCALIA, J., dissenting
the first section of this part to authorize rulemaking for
matters covered by the previous part. The only sensible
interpretation of §821 is that it gives the Attorney General
interpretive authority over the provisions of part C, all of
which “relat[e] to the registration and control of the manu-
facture, distribution, and dispensing of controlled sub-
stances.” These provisions include both the prescription
requirement of §829, and the criteria for registration and
deregistration of §§823 and 824 (as relevant below, see
Part III, infra).3
C
In sum, the Directive’s construction of “legitimate medi-
cal purpose” is a perfectly valid agency interpretation of
its own regulation; and if not that, a perfectly valid agency
interpretation of the statute. No one contends that the
construction is “plainly erroneous or inconsistent with the
regulation,” Bowles v. Seminole Rock & Sand Co., 325
U. S. 410, 414 (1945), or beyond the scope of ambiguity in
the statute, see Chevron, 467 U. S., at 843. In fact, as
——————
3 The Court concludes that “[e]ven if ‘control’ in §821 were understood
to signify something other than its statutory definition, it would not
support the Interpretive Rule.” Ante, at 13. That conclusion rests upon
a misidentification of the text that the Attorney General, pursuant to
his “control” authority, is interpreting. No one argues that the word
“control” in §821 gives the Attorney General “authority to define
diversion based on his view of legitimate medical practice,” ibid.
Rather, that word authorizes the Attorney General to interpret (among
other things) the “prescription” requirement of §829. The question then
becomes whether the phrase “legitimate medical purpose” (which all
agree is included in “prescription”) is at least open to the interpretation
announced in the Directive. See Chevron U. S. A. Inc., v. Natural
Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). And of
course it is—as the Court effectively concedes two pages earlier: “All
would agree, we should think, that the statutory phrase ‘legitimate
medical purpose’ is a generality, susceptible to more precise definition
and open to varying constructions, and thus ambiguous in the relevant
sense.” Ante, at 11 (citing Chevron).
Cite as: 546 U. S. ____ (2006) 11
SCALIA, J., dissenting
explained below, the Directive provides the most natural
interpretation of the Regulation and of the statute. The
Directive thus definitively establishes that a doctor’s order
authorizing the dispensation of a Schedule II substance for
the purpose of assisting a suicide is not a “prescription”
within the meaning of §829.
Once this conclusion is established, the other two con-
clusions in the Directive follow inevitably. Under our
reasoning in Moore, writing prescriptions that are ille-
gitimate under §829 is certainly not “in the [usual] course
of professional practice” under §802(21) and thus not
“authorized by this subchapter” under §841(a). See 423
U. S., at 138, 140–141. A doctor who does this may thus
be prosecuted under §841(a), and so it follows that such
conduct “violates the Controlled Substances Act,” 66 Fed.
Reg. 56608. And since such conduct is thus not in
“[c]ompliance with applicable . . . Federal . . . laws relating
to controlled substances,” 21 U. S. C. §823(f)(4), and may
also be fairly judged to “threaten the public health and
safety,” §823(f)(5), it follows that “[s]uch conduct by a
physician registered to dispense controlled substances
may ‘render his registration . . . inconsistent with the
public interest’ and therefore subject to possible suspen-
sion or revocation under 21 U. S. C. [§]824(a)(4).” 66 Fed.
Reg. 56608 (emphases added).
II
Even if the Directive were entitled to no deference
whatever, the most reasonable interpretation of the Regu-
lation and of the statute would produce the same result.
Virtually every relevant source of authoritative meaning
confirms that the phrase “legitimate medical purpose”4
——————
4 This phrase appears only in the Regulation and not in the relevant
section of the statute. But as pointed out earlier, the Court does not
contest that this is the most reasonable interpretation of the section—
regarding it, indeed, as a mere “parroting” of the statute.
12 GONZALES v. OREGON
SCALIA, J., dissenting
does not include intentionally assisting suicide. “Medi-
cine” refers to “[t]he science and art dealing with the
prevention, cure, or alleviation of disease.” Webster’s
Second 1527. The use of the word “legitimate” connotes an
objective standard of “medicine,” and our presumption that
the CSA creates a uniform federal law regulating the
dispensation of controlled substances, see Mississippi
Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 43
(1989), means that this objective standard must be a
federal one. As recounted in detail in the memorandum
for the Attorney General that is attached as an appendix
to the Directive (OLC Memo), virtually every medical
authority from Hippocrates to the current American Medi-
cal Association (AMA) confirms that assisting suicide has
seldom or never been viewed as a form of “prevention,
cure, or alleviation of disease,” and (even more so) that
assisting suicide is not a “legitimate” branch of that “sci-
ence and art.” See OLC Memo, App. to Pet. for Cert.
113a–130a. Indeed, the AMA has determined that
“ ‘[p]hysician-assisted suicide is fundamentally incompati-
ble with the physician’s role as a healer.’ ” Washington v.
Glucksberg, 521 U. S. 702, 731 (1997). “[T]he overwhelm-
ing weight of authority in judicial decisions, the past and
present policies of nearly all of the States and of the Fed-
eral Government, and the clear, firm and unequivocal
views of the leading associations within the American
medical and nursing professions, establish that assisting
in suicide . . . is not a legitimate medical purpose.” OLC
Memo, supra, at 129a. See also Glucksberg, supra, at 710,
n. 8 (prohibitions or condemnations of assisted suicide in
50 jurisdictions, including 47 States, the District of Co-
lumbia, and 2 Territories).
In the face of this “overwhelming weight of authority,”
the Court’s admission that “[o]n its own, this understand-
ing of medicine’s boundaries is at least reasonable,” ante,
at 26 (emphasis added), tests the limits of understate-
Cite as: 546 U. S. ____ (2006) 13
SCALIA, J., dissenting
ment. The only explanation for such a distortion is that
the Court confuses the normative inquiry of what the
boundaries of medicine should be—which it is laudably
hesitant to undertake—with the objective inquiry of what
the accepted definition of “medicine” is. The same confu-
sion is reflected in the Court’s remarkable statement that
“[t]he primary problem with the Government’s argument
. . . is its assumption that the CSA impliedly authorizes an
Executive officer to bar a use simply because it may be
inconsistent with one reasonable understanding of medical
practice.” Ibid. (emphasis added). The fact that many in
Oregon believe that the boundaries of “legitimate medi-
cine” should be extended to include assisted suicide does
not change the fact that the overwhelming weight of au-
thority (including the 47 States that condemn physician-
assisted suicide) confirms that they have not yet been so
extended. Not even those of our Eighth Amendment cases
most generous in discerning an “evolution” of national
standards would have found, on this record, that the
concept of “legitimate medicine” has evolved so far. See
Roper v. Simmons, 543 U. S. 551, 564–567 (2005).
The Court contends that the phrase “legitimate medical
purpose” cannot be read to establish a broad, uniform
federal standard for the medically proper use of controlled
substances. Ante, at 22. But it also rejects the most plau-
sible alternative proposition, urged by the State, that any
use authorized under state law constitutes a “legitimate
medical purpose.” (The Court is perhaps leery of embrac-
ing this position because the State candidly admitted at
oral argument that, on its view, a State could exempt from
the CSA’s coverage the use of morphine to achieve eupho-
ria.) Instead, the Court reverse-engineers an approach
somewhere between a uniform national standard and a
state-by-state approach, holding (with no basis in the
CSA’s text) that “legitimate medical purpose” refers to all
uses of drugs unrelated to “addiction and recreational
14 GONZALES v. OREGON
SCALIA, J., dissenting
abuse.” Ante, at 27. Thus, though the Court pays lipser-
vice to state autonomy, see ante, 23–24, its standard for
“legitimate medical purpose” is in fact a hazily defined
federal standard based on its purposive reading of the
CSA, and extracted from obliquely relevant sections of the
Act. In particular, relying on its observation that the
criteria for scheduling controlled substances are primarily
concerned with “addiction or abnormal effects on the
nervous system,” ante, at 26–27 (citing 21 U. S. C.
§§811(c)(7), 812(b), 811(f), 801a), the Court concludes that
the CSA’s prescription requirement must be interpreted in
light of this narrow view of the statute’s purpose.
Even assuming, however, that the principal concern of
the CSA is the curtailment of “addiction and recreational
abuse,” there is no reason to think that this is its exclusive
concern. We have repeatedly observed that Congress often
passes statutes that sweep more broadly than the main
problem they were designed to address. “[S]tatutory
prohibitions often go beyond the principal evil to cover
reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principal concerns
of our legislators by which we are governed.” Oncale v.
Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998).
See also H. J. Inc. v. Northwestern Bell Telephone Co., 492
U. S. 229, 248 (1989).
The scheduling provisions of the CSA on which the
Court relies confirm that the CSA’s “design,” ante, at 23, is
not as narrow as the Court asserts. In making scheduling
determinations, the Attorney General must not only con-
sider a drug’s “psychic or physiological dependence liabil-
ity” as the Court points out, ante, at 26 (citing 21 U. S. C.
§811(c)(7)), but must also consider such broad factors as
“[t]he state of current scientific knowledge regarding the
drug or other substance,” §811(c)(3), and (most notably)
“[w]hat, if any, risk there is to the public health,”
§811(c)(6). If the latter factor were limited to addiction-
Cite as: 546 U. S. ____ (2006) 15
SCALIA, J., dissenting
related health risks, as the Court supposes, it would be
redundant of §811(c)(7). Moreover, in making registration
determinations regarding manufacturers and distributors,
the Attorney General “shall” consider “such other factors
as may be relevant to and consistent with the public
health and safety,” §§823(a)(6), (b)(5), (d)(6), (e)(5) (em-
phasis added)—over and above the risk of “diversion” of
controlled substances, §§823(a)(1), (a)(5), (b)(1), (d)(1),
(d)(5), (e)(1). And, most relevant of all, in registering and
deregistering physicians, the Attorney General “may deny
an application for such registration if he determines that
the issuance of such registration would be inconsistent
with the public interest,” §823(f); see also §824(a)(4), and
in making that determination “shall” consider “[s]uch
other conduct which may threaten the public health and
safety,” §823(f)(5). All of these provisions, not just those
selectively cited by the Court, shed light upon the CSA’s
repeated references to the undefined term “abuse.” See
§§811(a)(1)(A), (c)(1), (c)(4), (c)(5); §§812(b)(1)(A), (b)(2)(A),
(b)(3)(A), (b)(4)(A), (b)(5)(A).
By disregarding all these public-interest, public-health,
and public-safety objectives, and limiting the CSA to
“addiction and recreational abuse,” the Court rules out the
prohibition of anabolic-steroid use for bodybuilding pur-
poses. It seeks to avoid this consequence by invoking the
Anabolic Steroids Control Act of 1990, 104 Stat. 4851.
Ante, at 27. But the only effect of that legislation is to
make anabolic steroids controlled drugs under Schedule
III of the CSA. If the only basis for control is (as the Court
says) “addiction and recreational abuse,” dispensation of
these drugs for bodybuilding could not be proscribed.
Although, as I have described, the Court’s opinion no
more defers to state law than does the Directive, the Court
relies on two provisions for the conclusion that “[t]he
structure and operation of the CSA presume and rely upon
a functioning medical profession regulated under the
16 GONZALES v. OREGON
SCALIA, J., dissenting
States’ police powers,” ante, at 23—namely the registra-
tion provisions of §823(f) and the nonpre-emption provi-
sion of §903. Reliance on the former is particularly unfor-
tunate, because the Court’s own analysis recounts how
Congress amended §823(f) in 1984 in order to liberate the
Attorney General’s power over registration from the con-
trol of state regulators. See ante, at 14; 21 U. S. C. §823(f);
see also Brief for Petitioners 34–35. And the nonpre-
emption clause is embarrassingly inapplicable, since it
merely disclaims field pre-emption, and affirmatively
prescribes federal pre-emption whenever state law creates
a conflict.5 In any event, the Directive does not purport to
pre-empt state law in any way, not even by conflict pre-
emption—unless the Court is under the misimpression
that some States require assisted suicide. The Directive
merely interprets the CSA to prohibit, like countless other
federal criminal provisions, conduct that happens not to be
forbidden under state law (or at least the law of the State
of Oregon).
With regard to the CSA’s registration provisions, 21
U. S. C. §§823(f), 824(a), the Court argues that the statute
cannot fairly be read to “ ‘hide elephants in mouseholes’ ”
by delegating to the Attorney General the power to deter-
mine the legitimacy of medical practices in “ ‘vague terms
or ancillary provisions.’ ” Ante, at 20 (quoting Whitman v.
American Trucking Assns., Inc., 531 U. S. 457, 468 (2001)).
This case bears not the remotest resemblance to Whitman,
which held that “Congress . . . does not alter the funda-
mental details of a regulatory scheme in vague terms or
ancillary provisions.” Ibid. (emphasis added). The Attor-
ney General’s power to issue regulations against question-
——————
5 Title 21 U. S. C. §903 reads, in relevant part, as follows: “No provi-
sion of this subchapter shall be construed as indicating an intent on the
part of the Congress to occupy the field in which that provision oper-
ates, including criminal penalties, to the exclusion of any State law on
the same subject matter . . . unless there is a positive conflict . . . .”
Cite as: 546 U. S. ____ (2006) 17
SCALIA, J., dissenting
able uses of controlled substances in no way alters “the
fundamental details” of the CSA. I am aware of only four
areas in which the Department of Justice has exercised
that power to regulate uses of controlled substances unre-
lated to “addiction and recreational abuse” as the Court
apparently understands that phrase: assisted suicide,
aggressive pain management therapy, anabolic-steroid
use, and cosmetic weight-loss therapy. See, e.g., In re
Harline, 65 Fed. Reg. 5665, 5667 (2000) (weight loss); In re
Tecca, 62 Fed. Reg. 12842, 12846 (1997) (anabolic ster-
oids); In re Roth, 60 Fed. Reg. 62262, 62263, 62267 (1995)
(pain management). There is no indication that enforce-
ment in these areas interferes with the prosecution of
“drug abuse” as the Court understands it. Unlike in
Whitman, the Attorney General’s additional power to
address other forms of drug “abuse” does absolutely noth-
ing to undermine the central features of this regulatory
scheme. Of course it was critical to our analysis in Whit-
man that the language of the provision did not bear the
meaning that respondents sought to give it. See 531 U. S.,
at 465. Here, for the reasons stated above, the provision is
most naturally interpreted to incorporate a uniform fed-
eral standard for legitimacy of medical practice.6
Finally, respondents argue that the Attorney General
must defer to state-law judgments about what constitutes
legitimate medicine, on the ground that Congress must
speak clearly to impose such a uniform federal standard
upon the States. But no line of our clear-statement cases
——————
6 The other case cited by the Court, FDA v. Brown & Williamson To-
bacco Corp., 529 U. S. 120 (2000), is even more obviously inapt. There
we relied on the first step of the Chevron analysis to determine that
Congress had spoken to the precise issue in question, impliedly repeal-
ing the grant of jurisdiction on which the FDA relied. 529 U. S., at
160–161. Here, Congress has not expressly or impliedly authorized the
practice of assisted suicide, or indeed “spoken directly” to the subject in
any way beyond the text of the CSA.
18 GONZALES v. OREGON
SCALIA, J., dissenting
is applicable here. The canon of avoidance does not apply,
since the Directive does not push the outer limits of Con-
gress’s commerce power, compare Solid Waste Agency of
Northern Cook Cty. v. Army Corps of Engineers, 531 U. S.
159, 172 (2001) (regulation of isolated ponds), with United
States v. Sullivan, 332 U. S. 689, 698 (1948) (regulation of
labeling of drugs shipped in interstate commerce), or
impinge on a core aspect of state sovereignty, cf. Atasca-
dero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985)
(sovereign immunity); Gregory v. Ashcroft, 501 U. S. 452,
460 (1991) (qualifications of state government officials).
The clear-statement rule based on the presumption
against pre-emption does not apply because the Directive
does not pre-empt any state law, cf. id., at 456–457; Rush
Prudential HMO, Inc. v. Moran, 536 U. S. 355, 359 (2002).
And finally, no clear statement is required on the ground
that the Directive intrudes upon an area traditionally
reserved exclusively to the States, cf. BFP v. Resolution
Trust Corporation, 511 U. S. 531, 544 (1994) (state regula-
tion of titles to real property), because the Federal Gov-
ernment has pervasively regulated the dispensation of
drugs for over 100 years. See generally Brief for Pro-Life
Legal Defense Fund et al. as Amici Curiae 3–15. It would
be a novel and massive expansion of the clear-statement
rule to apply it in a commerce case not involving pre-
emption or constitutional avoidance, merely because Con-
gress has chosen to prohibit conduct that a State has made
a contrary policy judgment to permit. See Sullivan, supra,
at 693.
III
Even if the Regulation did not exist and “prescription”
in §829 could not be interpreted to require a “legitimate
medical purpose,” the Directive’s conclusion that “prescrib-
ing, dispensing, or administering federally controlled
substances . . . by a physician . . . may ‘render his registra-
Cite as: 546 U. S. ____ (2006) 19
SCALIA, J., dissenting
tion . . . inconsistent with the public interest’ and therefore
subject to possible suspension or revocation under 21
U. S. C. [§]824(a)(4),” 66 Fed. Reg. 56608, would neverthe-
less be unassailable in this Court.
Sections 823(f) and 824(a) explicitly grant the Attorney
General the authority to register and deregister physi-
cians, and his discretion in exercising that authority is
spelled out in very broad terms. He may refuse to register
or deregister if he determines that registration is “incon-
sistent with the public interest,” 21 U. S. C. §823(f), after
considering five factors, the fifth of which is “[s]uch other
conduct which may threaten the public health and safety,”
§823(f)(5). See also In re Arora, 60 Fed. Reg. 4447, 4448
(1995) (“It is well established that these factors are to be
considered in the disjunctive, i.e., the Deputy Administra-
tor may properly rely on any one or a combination of
factors, and give each factor the weight he deems appro-
priate”). As the Court points out, these broad standards
were enacted in the 1984 amendments for the specific
purpose of freeing the Attorney General’s discretion over
registration from the decisions of state authorities. See
ante, at 13.
The fact that assisted-suicide prescriptions are issued in
violation of §829 is of course sufficient to support the
Directive’s conclusion that issuing them may be cause for
deregistration: such prescriptions would violate the fourth
factor of §823(f), namely “[c]ompliance with applicable . . .
Federal . . . laws relating to controlled substances,” 21
U. S. C. §823(f)(4). But the Attorney General did not rely
solely on subsection (f)(4) in reaching his conclusion that
registration would be “inconsistent with the public inter-
est”; nothing in the text of the Directive indicates that.
Subsection (f)(5) (“[s]uch other conduct which may threaten
the public health and safety”) provides an independent,
alternative basis for the Directive’s conclusion regarding
deregistration—provided that the Attorney General has
20 GONZALES v. OREGON
SCALIA, J., dissenting
authority to interpret “public interest” and “public health
and safety” in §823(f) to exclude assisted suicide.
Three considerations make it perfectly clear that the
statute confers authority to interpret these phrases upon
the Attorney General. First, the Attorney General is
solely and explicitly charged with administering the regis-
tration and deregistration provisions. See §§823(f), 824(a).
By making the criteria for such registration and deregis-
tration such obviously ambiguous factors as “public inter-
est” and “public health and safety,” Congress implicitly
(but clearly) gave the Attorney General authority to inter-
pret those criteria—whether or not there is any explicit
delegation provision in the statute. “Sometimes the legis-
lative delegation to an agency on a particular question is
implicit rather than explicit. In such a case, a court may
not substitute its own construction of a statutory provision
for a reasonable interpretation made by the administrator
of an agency.” Chevron, 467 U. S., at 844. The Court’s
exclusive focus on the explicit delegation provisions is, at
best, a fossil of our pre-Chevron era; at least since Chev-
ron, we have not conditioned our deferral to agency inter-
pretations upon the existence of explicit delegation provi-
sions. United States v. Mead Corp., 533 U. S. 218, 229
(2001), left this principle of implicit delegation intact.
Second, even if explicit delegation were required, Con-
gress provided it in §821, which authorizes the Attorney
General to “promulgate rules and regulations . . . relating
to the registration and control of the manufacture, distri-
bution, and dispensing of controlled substances . . . .”
(Emphasis added.) Because “dispensing” refers to the
delivery of a controlled substance “pursuant to the lawful
order of, a practitioner,” 21 U. S. C. §802(10), the deregis-
tration of such practitioners for writing impermissible
orders “relat[es] to the registration . . . of the . . . dispens-
ing” of controlled substances, 21 U. S. C. A. §821 (Supp.
2005).
Cite as: 546 U. S. ____ (2006) 21
SCALIA, J., dissenting
Third, §821 also gives the Attorney General authority to
promulgate rules and regulations “relating to the . . .
control of the . . . dispensing of controlled substances.” As
discussed earlier, it is plain that the ordinary meaning of
“control” must apply to §821, so that the plain import of
the provision is to grant the Attorney General rulemaking
authority over all the provisions of part C of the CSA, 21
U. S. C. A. §§821–830 (main ed. and Supp. 2005). Regis-
tering and deregistering the practitioners who issue the
prescriptions necessary for lawful dispensation of con-
trolled substances plainly “relat[es] to the . . . control of
the . . . dispensing of controlled substances.” §821 (Supp.
2005).
The Attorney General is thus authorized to promulgate
regulations interpreting §§823(f) and 824(a), both by
implicit delegation in §823(f) and by two grounds of ex-
plicit delegation in §821. The Court nevertheless holds
that this triply unambiguous delegation cannot be given
full effect because “the design of the statute,” ante, at 18,
evinces the intent to grant the Secretary of Health and
Human Services exclusive authority over scientific and
medical determinations. This proposition is not remotely
plausible. The Court cites as authority for the Secretary’s
exclusive authority two specific areas in which his medical
determinations are said to be binding on the Attorney
General—with regard to the “scientific and medical
evaluation” of a drug’s effects that precedes its scheduling,
§811(b), and with regard to “the appropriate methods of
professional practice in the medical treatment of the nar-
cotic addiction of various classes of narcotic addicts,” 42
U. S. C. §290bb–2a; see also 21 U. S. C. §823(g) (2000 ed.
and Supp. II). See ante, at 17–19. Far from establishing a
general principle of Secretary supremacy with regard to
all scientific and medical determinations, the fact that
Congress granted the Secretary specifically defined au-
thority in the areas of scheduling and addiction treatment,
22 GONZALES v. OREGON
SCALIA, J., dissenting
without otherwise mentioning him in the registration
provisions, suggests, to the contrary, that Congress envi-
sioned no role for the Secretary in that area—where, as we
have said, interpretive authority was both implicitly and
explicitly conferred upon the Attorney General.
Even if we could rewrite statutes to accord with sensible
“design,” it is far from a certainty that the Secretary,
rather than the Attorney General, ought to control the
registration of physicians. Though registration decisions
sometimes require judgments about the legitimacy of
medical practices, the Department of Justice has seem-
ingly had no difficulty making them. See In re Harline, 65
Fed. Reg. 5665; In re Tecca, 62 Fed. Reg. 12842; In re
Roth, 60 Fed. Reg. 62262. But unlike decisions about
whether a substance should be scheduled or whether a
narcotics addiction treatment is legitimate, registration
decisions are not exclusively, or even primarily, concerned
with “medical [and] scientific” factors. See 21 U. S. C.
§823(f). Rather, the decision to register, or to bring an
action to deregister, an individual physician implicates all
the policy goals and competing enforcement priorities that
attend any exercise of prosecutorial discretion. It is en-
tirely reasonable to think (as Congress evidently did) that
it would be easier for the Attorney General occasionally to
make judgments about the legitimacy of medical practices
than it would be for the Secretary to get into the business
of law enforcement. It is, in other words, perfectly consis-
tent with an intelligent “design of the statute” to give the
Nation’s chief law enforcement official, not its chief health
official, broad discretion over the substantive standards
that govern registration and deregistration. That is espe-
cially true where the contested “scientific and medical”
judgment at issue has to do with the legitimacy of physi-
cian-assisted suicide, which ultimately rests, not on “sci-
ence” or “medicine,” but on a naked value judgment. It no
more depends upon a “quintessentially medical judg-
Cite as: 546 U. S. ____ (2006) 23
SCALIA, J., dissenting
men[t],” ante, at 20, than does the legitimacy of polygamy
or eugenic infanticide. And it requires no particular medi-
cal training to undertake the objective inquiry into how
the continuing traditions of Western medicine have consis-
tently treated this subject. See OLC Memo, App. to Pet.
for Cert. 113a–130a. The Secretary’s supposedly superior
“medical expertise” to make “medical judgments,” ante, at
19–20, is strikingly irrelevant to the case at hand.
The Court also reasons that, even if the CSA grants the
Attorney General authority to interpret §823(f), the Direc-
tive does not purport to exercise that authority, because it
“does not undertake the five-factor analysis” of §823(f) and
does not “on its face purport to be an application of the
registration provision in §823(f).” Ante, at 14 (emphasis
added). This reasoning is sophistic. It would be im-
proper—indeed, impossible—for the Attorney General to
“undertake the five-factor analysis” of §823(f) and to
“appl[y] the registration provision” outside the context of
an actual enforcement proceeding. But of course the
Attorney General may issue regulations to clarify his
interpretation of the five factors, and to signal how he will
apply them in future enforcement proceedings. That is
what the Directive plainly purports to do by citing
§824(a)(4), and that is why the Directive’s conclusion on
deregistration is couched in conditional terms: “Such
conduct by a physician . . . 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).” 66 Fed. Reg. 56608 (emphasis added).
It follows from what we have said that the Attorney
General’s authoritative interpretations of “public interest”
and “public health and safety” in §823(f) are subject to
Chevron deference. As noted earlier, the Court does not
contest that the absence of notice-and-comment proce-
dures for the Directive renders Chevron inapplicable. And
there is no serious argument that “Congress has directly
24 GONZALES v. OREGON
SCALIA, J., dissenting
spoken to the precise question at issue,” or that the Direc-
tive’s interpretations of “public health and safety” and
“inconsistent with the public interest” are not “permissi-
ble.” Chevron, 467 U. S., at 842–843. On the latter point,
in fact, the condemnation of assisted suicide by 50 Ameri-
can jurisdictions supports the Attorney General’s view.
The Attorney General may therefore weigh a physician’s
participation in assisted suicide as a factor counseling
against his registration, or in favor of deregistration,
under §823(f).
In concluding to the contrary, the Court merely presents
the conclusory assertion that “it is doubtful the Attorney
General could cite the ‘public interest’ or ‘public health’ to
deregister a physician simply because he deemed a contro-
versial practice permitted by state law to have an illegiti-
mate medical purpose.” Ante, at 17. But why on earth
not?—especially when he has interpreted the relevant
statutory factors in advance to give fair warning that such
a practice is “inconsistent with the public interest.” The
Attorney General’s discretion to determine the public
interest in this area is admittedly broad—but certainly no
broader than other congressionally conferred Executive
powers that we have upheld in the past. See, e.g., Na-
tional Broadcasting Co. v. United States, 319 U. S. 190,
216–217 (1943) (“public interest”); New York Central
Securities Corp. v. United States, 287 U. S. 12, 24–25
(1932) (same); see also Mistretta v. United States, 488
U. S. 361, 415–416 (1989) (SCALIA, J., dissenting).
* * *
In sum, the Directive’s first conclusion—namely that
physician-assisted suicide is not a “legitimate medical
purpose”—is supported both by the deference we owe to
the agency’s interpretation of its own regulations and by
the deference we owe to its interpretation of the statute.
The other two conclusions—(2) that prescribing controlled
Cite as: 546 U. S. ____ (2006) 25
SCALIA, J., dissenting
drugs to assist suicide violates the CSA, and (3) that such
conduct is also “inconsistent with the public interest”—are
inevitable consequences of that first conclusion. Moreover,
the third conclusion, standing alone, is one that the Attor-
ney General is authorized to make.
The Court’s decision today is perhaps driven by a feeling
that the subject of assisted suicide is none of the Federal
Government’s business. It is easy to sympathize with that
position. The prohibition or deterrence of assisted suicide
is certainly not among the enumerated powers conferred
on the United States by the Constitution, and it is within
the realm of public morality (bonos mores) traditionally
addressed by the so-called police power of the States. But
then, neither is prohibiting the recreational use of drugs
or discouraging drug addiction among the enumerated
powers. From an early time in our national history, the
Federal Government has used its enumerated powers,
such as its power to regulate interstate commerce, for the
purpose of protecting public morality—for example, by
banning the interstate shipment of lottery tickets, or the
interstate transport of women for immoral purposes. See
Hoke v. United States, 227 U. S. 308, 321–323 (1913);
Lottery Case, 188 U. S. 321, 356 (1903). Unless we are to
repudiate a long and well-established principle of our
jurisprudence, using the federal commerce power to pre-
vent assisted suicide is unquestionably permissible. The
question before us is not whether Congress can do this, or
even whether Congress should do this; but simply whether
Congress has done this in the CSA. I think there is no
doubt that it has. If the term “legitimate medical purpose”
has any meaning, it surely excludes the prescription of
drugs to produce death.
For the above reasons, I respectfully dissent from the
judgment of the Court.
Cite as: 546 U. S. ____ (2006) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–623
_________________
ALBERTO R. GONZALES, ATTORNEY GENERAL,
ET AL., PETITIONERS v. OREGON ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 17, 2006]
JUSTICE THOMAS, dissenting.
When Angel Raich and Diane Monson challenged the
application of the Controlled Substances Act (CSA), 21
U. S. C. §801 et seq., to their purely intrastate possession
of marijuana for medical use as authorized under Califor-
nia law, a majority of this Court (a mere seven months
ago) determined that the CSA effectively invalidated
California’s law because “the CSA is a comprehensive
regulatory regime specifically designed to regulate which
controlled substances can be utilized for medicinal pur-
poses, and in what manner.” Gonzales v. Raich, 545 U. S.
___, ___ (2005) (slip op., at 24) (emphasis added). The ma-
jority employed unambiguous language, concluding that the
“manner” in which controlled substances can be utilized “for
medicinal purposes” is one of the “core activities regulated
by the CSA.” Id., at ___ (slip op., at 25). And, it described
the CSA as “creating a comprehensive framework for regu-
lating the production, distribution, and possession of . . .
‘controlled substances,’ ” including those substances that
“‘have a useful and legitimate medical purpose,’ ” in order to
“foster the beneficial use of those medications” and “to
prevent their misuse.” Id., at ___ (slip op., at 21).
Today the majority beats a hasty retreat from these
conclusions. Confronted with a regulation that broadly
requires all prescriptions to be issued for a “legitimate
2 GONZALES v. OREGON
THOMAS, J., dissenting
medical purpose,” 21 CFR §1306.04(a) (2005), a regulation
recognized in Raich as part of the Federal Government’s
“closed . . . system” for regulating the “manner” in “which
controlled substances can be utilized for medicinal pur-
poses,” 545 U. S., at ___, ___ (slip op., at 10, 24), the major-
ity rejects the Attorney General’s admittedly “at least
reasonable,” ante, at 26, determination that administering
controlled substances to facilitate a patient’s death is not a
“ ‘legitimate medical purpose.’ ” The majority does so
based on its conclusion that the CSA is only concerned
with the regulation of “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.” Ante, at 23. In other words,
in stark contrast to Raich’s broad conclusions about the
scope of the CSA as it pertains to the medicinal use of
controlled substances, today this Court concludes that the
CSA is merely concerned with fighting “ ‘drug abuse’ ” and
only insofar as that abuse leads to “addiction or abnormal
effects on the nervous system.”1 Ante, at 26.
The majority’s newfound understanding of the CSA as a
statute of limited reach is all the more puzzling because it
rests upon constitutional principles that the majority of
the Court rejected in Raich. Notwithstanding the States’
“ ‘traditional police powers to define the criminal law and
to protect the health, safety, and welfare of their citizens,’ ”
545 U. S., at ___, n. 38 (slip op., at 27, n. 38), the Raich
majority concluded that the CSA applied to the intrastate
possession of marijuana for medicinal purposes authorized
by California law because “Congress could have rationally”
concluded that such an application was necessary to the
——————
1 Themajority does not expressly address whether the ingestion of a
quantity of drugs that is sufficient to cause death has an “abnormal
effec[t] on the nervous system,” ante, at 25, though it implicitly rejects
such a conclusion.
Cite as: 546 U. S. ____ (2006) 3
THOMAS, J., dissenting
regulation of the “larger interstate marijuana market.”
Id., at ___, ___ (slip op., at 28, 30). Here, by contrast, the
majority’s restrictive interpretation of the CSA is based in
no small part on “the structure and limitations of federal-
ism, which allow the States ‘ “great latitude under their
police powers to legislate as to the protection of the lives,
limbs, health, comfort, and quiet of all persons.” ’ ” Ante, at
23 (quoting Medtronic, Inc. v. Lohr, 518 U. S. 470, 475
(1996), in turn quoting Metropolitan Life Ins. Co. v. Mas-
sachusetts, 471 U. S. 724, 756 (1985)). According to the
majority, these “background principles of our federal
system . . . belie the notion that Congress would use . . . an
obscure grant of authority to regulate areas traditionally
supervised by the States’ police power.” Ante, at 28.
Of course there is nothing “obscure” about the CSA’s
grant of authority to the Attorney General. Ante, p. ___
(SCALIA, J., dissenting). And, the Attorney General’s
conclusion that the CSA prohibits the States from author-
izing physician assisted suicide is admittedly “at least
reasonable,” ante, at 26 (opinion of the Court), and is
therefore entitled to deference. Ante, at 6–7 (SCALIA, J.,
dissenting). While the scope of the CSA and the Attorney
General’s power thereunder are sweeping, and perhaps
troubling, such expansive federal legislation and broad
grants of authority to administrative agencies are merely
the inevitable and inexorable consequence of this Court’s
Commerce Clause and separation-of-powers jurispru-
dence. See, e.g., Raich, supra; Whitman v. American
Trucking Assns., Inc., 531 U. S. 457 (2001).
I agree with limiting the applications of the CSA in a
manner consistent with the principles of federalism and
our constitutional structure. Raich, supra, at ___ (THO-
MAS, J., dissenting); cf. Whitman, supra, at 486–487
(THOMAS, J., concurring) (noting constitutional concerns
with broad delegations of authority to administrative
agencies). But that is now water over the dam. The rele-
4 GONZALES v. OREGON
THOMAS, J., dissenting
vance of such considerations was at its zenith in Raich,
when we considered whether the CSA could be applied to
the intrastate possession of a controlled substance consis-
tent with the limited federal powers enumerated by the
Constitution. Such considerations have little, if any,
relevance where, as here, we are merely presented with a
question of statutory interpretation, and not the extent of
constitutionally permissible federal power. This is par-
ticularly true where, as here, we are interpreting broad,
straightforward language within a statutory framework
that a majority of this Court has concluded is so compre-
hensive that it necessarily nullifies the States’ “ ‘tradi-
tional . . . powers . . . to protect the health, safety, and
welfare of their citizens.’ ”2 Raich, supra, at ___, n. 38 (slip
op., at 27, n. 38). The Court’s reliance upon the constitu-
tional principles that it rejected in Raich—albeit under
the guise of statutory interpretation—is perplexing to say
the least. Accordingly, I respectfully dissent.
——————
2 Notably, respondents have not seriously pressed a constitutional
claim here, conceding at oral argument that their “point is not neces-
sarily that [the CSA] would be unconstitutional.” Tr. of Oral Arg. 44.
In any event, to the extent respondents do present a constitutional
claim, they do so solely within the framework of Raich. Framed in this
manner, the claim must fail. The respondents in Raich were “local
growers and users of state-authorized, medical marijuana,” who stood
“outside the interstate drug market” and possessed “ ‘medicinal mari-
juana . . . not intended for . . . the stream of commerce.’ ” 545 U. S., at
___, ___, (slip op., at 5, 16) (THOMAS, J., dissenting). Here, by contrast,
the respondent-physicians are active participants in the interstate
controlled substances market, and the drugs they prescribe for assist-
ing suicide have likely traveled in interstate commerce. If the respon-
dents in Raich could not sustain a constitutional claim, then a fortiori
respondents here cannot sustain one. Respondents’ acceptance of Raich
forecloses their constitutional challenge.