Gonzalez v. Oregon (04-623), Wachovia Bank, N.A. v. Schmidt (04-1186) and order list

January 17, 2006 Supreme Court Update

Greetings, Court Fans!
Today, the Court released its opinion in one of the more controversial cases of the Term, Gonzalez v. Oregon (04-623), the Oregon assisted suicide case. In a 6-3 decision, the Court, led by Justice Kennedy, found that the Attorney General lacks authority under the Controlled Substances Act ("CSA") to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicides in accordance with state law (here, Oregon's Death With Dignity Act ("ODWDA"). The AG had issued an Interpretive Rule concluding that the term "prescription" requires a "legitimate medical purpose" for the drug, that "assisting suicide is not a ‘legitimate medical purpose' . . . and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the [CSA]." If the Rule was valid, Oregon doctors prescribing lethal doses of controlled drugs under ODWDA would likely have their federal registration to prescribe controlled drugs revoked as inconsistent with "the public interest," and face criminal prosecution for violating the CSA. Oregon, along with a physician, pharmacist and terminally ill state residents filed suit to challenge the Rule. The District Court permanently enjoined its enforcement, and the Ninth Circuit invalidated it altogether.
After pages of decidedly dry discussion regarding the different levels of deference accorded agency interpretation (if you need a primer on Auer, Chevron, and Skidmore deference, this is a good place to look), the Court agreed with the Ninth Circuit. The Court found the AG's Interpretive Rule was subject only to Skidmore deference – that is, only as much deference as it had "power to persuade," and the Court was not persuaded. The CSA is designed to regulate and deter recreational use of drugs, but not to infringe on a state's right to regulate medicine absent a positive conflict between the CSA and state law. While the AG's interpretation of "prescription" was not unreasonable, the Court would not read into the CSA a fundamental alteration of this balance between the federal government and the states based on the vague word "prescription" (or the fact that the AG could deny registration of a physician based on the "public interest"). As the Court put it, Congress "does not, one might say, hide elephants in mouse holes." The majority also seemed to find it notable that an attempt to amend the CSA to expressly prohibit physician assisted suicide did not pass, although this was not a cornerstone of the Court's analysis. (Justice Scalia certainly would not abide such logic, which he likely would view as akin to the "dog that didn't bark.") Perhaps the most surprising part of the majority's decision is the fact that it assumed that Congress could have prohibited the conduct at issue under its Commerce Clause authority – it just didn't do so here.
Scalia dissented, joined by Thomas and the Chief (in his first dissent). They would have afforded the AG's Interpretive Rule Auer or Chevron deference and, even absent deference, agreed that the AG's interpretation is the most logical one. Thomas wrote a separate dissent to say that he believes the CSA should be interpreted consistent with principles of federalism – thus his dissent in Gonzalez v. Raich, the medical marijuana case – but having just decided Raich (which found that the CSA constitutionally could regulate medical marijuana grown and used within one state), that issue was "water over the dam." Absent a constitutional challenge (not made here), Thomas found no problem with the AG's interpretation in this case.
Next, in the somewhat less riveting case of Wachovia Bank, N.A. v. Schmidt (04-1186), the Court unanimously held that, for purposes of diversity jurisdiction in federal courts, a national bank is a "citizen" only of the state where its main office is located. Justice Ginsburg wrote for the 8-0 Court (Justice Thomas did not participate). For those who want more detail than just the holding, the opinion turned on the meaning of 28 U.S.C. § 1348, which provides that federally chartered national banks are citizens of "the States in which they are respectively located." In this case, the Fourth Circuit had held that national banks were citizens of every state in which they had branches, a holding that would restrict dramatically the banks' access to federal courts (since diversity jurisdiction requires that plaintiff and defendant be from different states). The Court reversed, on the ground that nothing in the statute indicates that Congress intended to depart from the norm for jurisdiction: individuals who reside in more than one state are citizens of only one, and a corporation is a citizen only of its state of incorporation and principal of place of business. National banks should be no different – otherwise, they would be "singularly disfavored" entities. The Court also criticized the Fourth Circuit's application of venue case law to the meaning of "located" for jurisdictional purposes, quoting a law journal article for the ominous notion that assuming that a word has the same meaning in different rules used for different purposes "has all the tenacity of original sin and must constantly be guarded against."
Today's order list contained no new cert grants – in fact, it contained no action at all on one of the bigger petitions of the term, the Padilla v. Hanft (05-533) case challenging the President's authority to seize American citizens in civilian settings and detain them as "enemy combatants" in the war on terror. That case was conferenced last week, and presumably has been relisted for further consideration.
On Friday, however, the Court did grant cert in one new case, Dixon v. United States (05-7053), in which the Court will decide who bears burden of persuasion on a defense of duress or coercion to a federal criminal charge – the prosecution or the accused.
Finally, today the Court released a rare dissent from a denial of cert, by Justice Breyer in Allen v. Ornoski (05-8639), in which the petitioner challenged his death sentence. Breyer dissented from the denial, and would have granted a stay of execution, on the ground that Allen, who is 76, blind, diabetic, and wheelchair-bound, raised a significant question as to whether his execution would be cruel and unusual punishment.

We're expecting more opinions tomorrow. Until then, thanks for reading!
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400