May 08, 2003
Reflections On Federal Arguments In 'Oregon v. Ashcroft'
Thinking back on it, I can't help but come away with the impression that the Federal government's case consists almost entirely of two unstable arguments.
First, they make use of what appears to be little more than an overly-convoluted and heavily-jargoned version of, "Because we said so, that's why." A substantial portion of their case (or so it seemed to me) rests upon the Attorney General's interpretation of his rule-making authority under the Controlled Substances Act.
This is where the question of "finality" was raised by at least two of the presiding judges. As I understand it, the concept of "finality" deals with the question of who gets to make the, well, final and binding decision on a given matter. What the U.S. Department of Justice appears to maintain is that the Controlled Substances Act gives the Attorney General precisely the sort and nature of rule-making authority utilized in this case, and that such rule-making is the final word on such matters related to the Controlled Substances Act in any way.
But since one of the central tenets of the argument of supporters of the Oregon Law is that the Controlled Substances Act does not give the Department of Justice authority to define the practice of medicine, they assert that they Attorney General misconstrued and misapplied his rule-making authority udner the Controlled Substances Act. And so, it is up to the court to reach "finality."
The second seemingly unstable aspect of the Department of Justice's case is their reliance upon the spectre of "2,000 years of tradition going back to Hippocrates."
While such societal (or civilizational) continuity is, of course, a legitimate argument to include in a larger and broader set of arguments, it's simply not strong enough to be a central component of an argument in and of itself. It's only real strength lies in being rhetorical support for a wider and more comprehensive argument.
And other than the above-mentioned first aspect of the Federal case, I couldn't hear much in the way of such a wider argument in the Department of Justice's presentation. Perhaps it exists somewhere in the briefs they've filed along the way, but it certainly wasn't very apparent during these oral arguments.