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Xiulu Ruan, MD; 66857019
F.C.I. Oakdale 1, Eva 2
P.O. Box 5000 Oakdale, LA 71463
January 1, 2023
Re: Multi-Party Lawsuit Against the DEA
Jack Resneck, Jr., MD, President
James L. Madara, MD, CEO & Executive VP
AMA Plaza, 330 N. Wabash Ave., Suite 39300 Chicago, IL 60611-5885
Dear Drs. Resneck and Madara:
Happy New Year!
In my previous correspondence, I shared my grave concern about the scapegoating-physician movement and my opinion that a collective effort is needed in order to fundamentally change the image of societal scapegoats of physicians in this nation.
Today I write to propose an overdue legal intervention plan for your consideration. I believe the time is ripe for this litigation. My conclusion is based on the following two recent Supreme Court precedents:
On June 27, 2022, the Supreme Court published its ruling in Ruan v. United States, 142 S. Ct. 2370 (2022), whereby the Court, in a 9:0 decision, made clear that for CSA 841(a) prosecution of doctors as “drug dealers,” the Government had to prove that the physicians knowingly or intentionally acted as unauthorized manner, i.e. physicians knowingly or intentionally acted as “drug dealers.”
For close to half a century since Moore (1975), the Government had never been required to prove that physicians prosecuted under the CSA 841(a) had to harbor a “guilty intention” or “mens rea.” Innumerable physicians, pharmacists, dentists, mid-level practitioners, have been wrongfully convicted under the CSA 841(a) as “drug dealers.”
On June 30, 2022, the Supreme Court handed down West Virginia v. EPA, 142 S. Ct. 2587 (2022), where West Virginia, the North American Coal Corporation, Westmoreland Mining Holdings, LLC, and North Dakota, sued the Environmental Protection Agency (EPA) for abuse of its power. The Court ruled in petitioners’ favor (6:3).
The Court held that Congress did not give the EPA the authority to devise capping carbon dioxide emissions, but the EPA adopts on it own such a regulatory scheme. A decision of such magnitude and consequence rests with Congress itself; EPA’s conduct violated the major questions doctrine.
The analogy is: Congress did not grant the DEA the authority to regulate medicine; using DOJ’s explanatory regulation (21C.F.R Section 1306.04(a)) to massively prosecute clinicians violated the major questions doctrine.
The criminal liability standard of prosecuting physicians for CSA 841 violations is formed by combining the CSA 841(a) statute with 21 F.C.R. Section 1306.04(a), plus Moore (1975). Section 1306,04(a), a federal regulation promulgated by the DEA of the DOJ, has been used as a statutory offense element. This practice violated the major questions doctrine because this hybrid standard allowed a prosecutorial agency to define a criminal offense. In short, it created a criminal liability without an element of the defendant’s knowledge of wrongdoing. •
In West Virginia v. EPA, in a concurring opinion, Justice Gorsuch, joined by Justice Alito, admonished that the major questions doctrine works in much the same way to protect the Constitution’s separation of powers: “Permitting Congress to divest its legislative power to the Executive Branch would ‘dash [this] whole scheme.”‘ Justice Gorsuch also reasoned that the major questions doctrine may apply when an agency seeks to intrude into an area that is the particular domain of state law.
“Skepticism may be merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise.”
Indeed the practice of medicine had always been regulated under the state medical boards, with the oversight of the Federation of State Medical Boards. The DEA/DOJ, without Congress’s clear delegation, usurped this authority and turned physicians’ prescribing into a felony offense under the CSA 841(a), akin to drug trafficking.
What education, training, knowledge, or expertise have federal agents achieved in medicine so as to allow them to judge how medicine should be practiced? For decades the practice of medicine, especially the subspecialty of pain medicine, has been largely eroded by the federal Government’s abusive intrusion. While innumerable pain physicians have been unjustly prosecuted and incarcerated, others are forced to abdicate their ethical obligation and abandon their patients by avoiding prescribing medically needed pain medicines for fear of criminal prosecution.
No one really knows how many pain patients end up relying on the illicit black market to obtain “painkillers,” which are the mo t dangerous because there is no medical supervision doing this process and patients may not even know what they are actually getting. A purported hydrocodone tablet bought from the black market might be adulterated with fentanyl analogs which could be 100 to 1,000 times as potent as morphine. Still, some other patients choose to commit suicide rather than endure their intractable pain. It is heartbreaking and shameful to see such a tragic dilemma: while the number of opioid prescriptions has dropped to the record low due to the massive incarceration of physicians, the opioid overdose deaths have reached the all-time high.
The inference is obvious: Pain physicians help patients’ pain and suffering and save patients’ lives.
It is time for all healthcare professional to be united for a common cause: to fight for our rights and liberty, save our patients, protect our careers, and preserve our professions. We should mobilize the entire base of healthcare professionals including national medical societies/organizations (regardless of specialties and subspecialties), Federation of the State Medical Boards, and state medical boards, and other national professional associations such as pharmacists and dentists, as well as patient advocacy groups.
I plan to write to a few legal organizations for their support, e.g., the Cato Institute, Due Process Institute, National Association of Criminal Lawyers Association, Pacific Legal Foundation, Professors of Health Law and Policy Heritage Foundation, Washington Legal Foundation, Federalist Society, ACLU, U.S. Chamber of Commerce, National Pain Advocacy Center, Association of American Physicians and Surgeons, Physicians Against Abuse, Center of U.S. Policy, Compassion and Choices and others, most of which had submitted Brief of Amicus Curiae in connection to my Supreme Court petition. I hope some of them may lend their helping hands to support our cause.
All parties concerned should join this lawsuit against the DEA, just like in West Virginia v EPA, where West Virginia, the North American Coal Cooperation, Westmoreland Mining Holdings LLC, and North Dakota, each participated in the lawsuit against the EPA. It is time that healthcare professionals join hands to wage this lawsuit against the DEA.
I hope some of the arguments I made in this essay may turn out to be useful. Thank you very much in advance for your attention to this matter. Sincerely,
Xiulu Ruan, MD
