The Corner

Law & the Courts

Roberts’ DACA Trick Blocks Disfavored Policy without Substantive Law Precedent

President Donald Trump greets Supreme Court Chief Justice John Roberts as he arrives to deliver his State of the Union address in the House Chamber in Washington, D.C., February 4, 2020. (Leah Millis/Reuters)

When I heard about the reasoning in Chief Justice John Roberts’s decision concerning the DACA case, I had a real deja vu experience. Roberts applied arcane administrative law jurisprudence to obtain a particular policy result he favored — and without creating a policy precedent that would bind future court rulings on the substance of the issue.

Here’s the deja vu part: During the George W. Bush administration, Attorney General John Ashcroft issued a guidance that prohibited federally controlled substances from being used in assisted suicide. The lawsuits flew predictably, and the case ended up in the Supreme Court.

Just as Roberts did today, in 2006 Justice Anthony Kennedy, writing for a 6–3 majority in Gonzales v Oregon, ruled that the government could indeed prohibit controlled substances from use in assisted suicide. But awww, gosh darn, too bad — Ashcroft went about it the wrong way. From my analysis published here back then:

The general media spin about the case has been that, as Reuters put it, the Supremes issued a “stinging rebuke” to the administration and endorsed the assisted suicide as a legitimate public policy. But this isn’t true. Justice Anthony Kennedy’s majority decision even acknowledged that the Justice Department was “reasonable” in its assertion that “medicine’s boundaries” preclude assisted suicide. The majority also explicitly agreed that the federal government possesses the inherent power to prevent narcotics from being prescribed for assisted suicide, for example, by amending the federal Controlled Substances Act. The case provided neither a sweeping assertion of the validity of assisted suicide nor a ringing endorsement of its legality being strictly a matter of state’s rights.

So if the federal government can, in theory, preclude controlled substances from being used in assisted suicide, why did it lose? The majority believed that former Attorney General John Ashcroft went about that task in the wrong way. Specifically, it ruled that Ashcroft exceeded his authority when he determined that assisted suicide was not a “legitimate medical use” of controlled substances without obtaining any information about the practice of medicine, assisted suicide, or other relevant matters necessary to come to that conclusion from outside the Department of Justice. Consequently, the Court found, Ashcroft’s interpretation, while reasonable, was not persuasive because it exceeded his “expertise.”

See how that works?

You have to admire the elegance. Administrative law offers a great sleight of hand opportunity for “conservative” judges and justices to block policies with which they disapprove — and without leaving any incriminating ideological fingerprints.

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