[1] Charles Tiefer, Veering Right: How the Bush Administration Subverts the Law for Conservative Causes, (Univ. of Calif. Press, 2004). Tiefer, former solicitor of the House of Representatives during the first Bush Administration and a key player in the Iran-Contra investigations, is a Professor of Law at the University of Baltimore School of Law.  See, University of Baltimore School of Law, Faculty Profiles, available at: <http://law.ubalt.edu/faculty/tiefer.html> (last visited May 1, 2006); see also, Veering Right Homepage, available at: <http://www.ucpress.edu/books/pages/10281.html> (last visited May 1, 2006).

[2] Among Tiefer’s several predictions of attempts to circumvent constitutional checks and balances in a second Bush term, through “political abuse and subversion of the law,” he identified the following:  an emerging conservative federal judiciary, particularly on the bench of the Supreme Court of the United States; a permanent conservative fiscal program at the federal level; attempts to undermine key federal civil rights enforcement; and attempts to minimize the effectiveness of various federal agencies such as the EPA. The first full year of the second Bush term has seen many of these predicted abuses already come to pass, in three particular ways: 1) the elevation of Justices Roberts and Alito; 2) FEMA’s evisceration and subsequent impotent response to Hurricane Katrina; and, 3)  most recently, the Bush Administration’s threat to criminally prosecute “leaks” to the media, making political use of the Barbour Espionage Act (June 15, 1917, ch. 30, 40 Stat. 217) ostensibly to curtail freedom of the press and negative political reporting on the Administration, “declaring war on the values at home it professes to be promoting abroad,” according to New York Times Executive Editor, Bill Keller.  See, Dan Eggen, White House Trains Efforts on Media Leaks, The Wash. Post (March 5, 2006) at A1.  The “war on drugs,” of course, has been an integral part of the conservative social agenda embraced by the Nixon, Reagan, and respective Bush administrations, with proponents like former national drug czar William Bennett among its principal advocates.

[3] Atlantic Fish Spotters, Ass’n., v. Evans, 206 F. Supp 2d. 81, rev’d, 321 F.3d 220 (1st Cir. 2003).

[4] Charles Tiefer, How to Steal a Trillion:  The Uses of Laws About Making Laws in 2001, 17 J. L. & Politics 409 (Summer, 2001).

[5] Philip J. Sweitzer, The Boeing 767 Tanker Boondoggle:  How the Corporate-Sales-Pitch Procurement Regime Lost its Parent and the U.S. Economy International Billions, 23 Penn St. Int’l L. R. 383 (Fall, 2004). In the case of the 767 tanker scandal, procurement law was broken to “bail out” – in the words of Senator John McCain, (R. – Arizona) – a politically-important ailing government contractor, Boeing, which was bleeding money from lost commercial aircraft sales, leases and payment delinquencies in the wake of the tragic events of September 11, 2001.

[6] Philip J. Sweitzer, Drug Law Enforcement in Crisis:  Cops on Steroids (Depaul J. of Sports L. & Contemp. Probs., (February, 2005).

[7] People v. Foley, No. 20370 (Suffolk, N.Y., filed, Sept. 12, 2002); People v. Christy, No. 03051A-2002 (Suffolk, N.Y., filed, Sept. 12, 2002); People v. Grettler, No. 02480A-2002 (Suffolk, N.Y., filed Sept. 12, 2002); People v. Grettler, 2002SU008625 (Suffolk, N.Y., filed Sept. 12, 2002); People v. Foley, No. 2001RI006797 (Richmond, N.Y., filed, Oct. 11, 2002); People v. Foley, No. 03051C-2002 (Suffolk, N.Y., filed, Sept. 12, 2002).

[8] Sweitzer, note 6, supra.

[9] The expansion of coverage of the Anabolic Steroid Control Act of 2004, 108 P.L. 358 (codified as amended in the United States Code, adding 42 U.S.C. § 290bb-25f, amending 21 U.S.C. §§ 802, 802 note, and 811 and appearing in part as notes to 28 U.S.C. § 994 and 42 U.S.C. § 290aa-4) to include anabolic hormone precursors to the statute’s coverage, demonstrated Congressional commitment to an ever-more draconian policy of prohibition.  More recently, as Rick Collins has noted, the United States Sentencing Commission has elected to increase sentencing penalties for steroid use twenty fold for orally ingested anabolic steroids, and up to fifty fold for injectable forms, ignoring the recommendation of its own Practice Advisory Group.

[10] John Walters was named to Bennett’s “drug czar” post by the Bush administration, signaling a continuation of Bennett’s “zero-tolerance” enforcement policies. Walters has been widely criticized for what has been termed a “lock-em-up” attitude toward drug offenders, with little use for rehabilitation, other than faith-based programs.

[11] Restoring Faith in America's Pastime: Evaluating Major League Baseball's Efforts to Eradicate Steroid Use, Hearing of the House Committee on Government Reform 109^th Cong. 8 (March 17, 2005).

[12] In re: Michael C. Scally, (No. 503-02-4145, Tex. S. Off. Adm. Hrgs., filed Feb 4, 2005).

[13] Administrative agencies like the Texas State Board of Medical Examiners are typically vested with regulatory authority by statute as executive agencies.  In the case of the Texas State Board of Medical Examiners, § 152.001 of the Medical Practices Act identifies the agency as an arm of the executive branch of Texas State government.  The consolidation of executive power in the hands of a highly secretive executive has been a recurrent theme of the Bush Administration.  George W. Bush, moreover, was formerly governor of Texas, before his ascendancy to the Presidency of the United States.  James Madison, one of the principal framers of the Constitution, expressed particular distrust of the “tyranny of the majority,” a concern against which certain rules of congressional procedure – like the cloture rule – evolved to defend.  Moreover the entire system of constitutional checks and balances the framers devised was to eliminate any possibility for the concentration of power in the hands of a monarchical executive.

[14] Philip J. Sweitzer, An Open Letter to the Members of the House Committee on Government Reform, and the Senate Committee on Commerce, Science and Transportation, on the Recent Hearings and Legislation relating to the use of Anabolic Steroids in Sports, available at:  http://www.mesomorphosis.com/articles/sweitzer/letter-to-congress-regarding-steroids.htm (last visited, February 14, 2006).

[15] As Putney points out in his definitive treatise on the subject, Muscular Christianity did not start out as a religious project; rather, it evolved out of a renewed interest in physical fitness and team sport in Victorian England, which Kingsley saw as a vehicle for building the character of youth. As a means to the end, it was not nearly as directly “religious” an endeavor in Great Britain as in America. Clifford Putney, Muscular Christianity: Manhood and Sports in Protestant America (Harvard Univ. Press, 2002). Both Putney and Rotondo explain the expansion of direct evangelism and the YMCA’s role in those efforts in the late nineteenth and early twentieth centuries:  the Y used the gym as a way to get young men off the street, into team sports – basketball and volleyball, originally – thus, away from vice, and into Bible study. Because the body was the “temple of the Lord,” engaging the body with wholesome, competitive sport became an integral part of engaging young men’s souls in Bible study.  E. Anthony Rotondo, American Manhood: Transformations in Masculinity from the Revolution to the Modern Era (Basic Books, 1994).  Bodybuilding, as Paglia points out, is a complete rejection of the Christian ethic of subordination of image to word (as in Bible study).  Camille Paglia, Sex, Art and American Culture (Vintage Books, 1992). Focused instead on the pagan ideal of the beauty of the body itself, like classical art, the bodybuilder seeks to attain physical perfection for its value alone.  The bodybuilder’s ultimate goal is one of pure image, of the sculptural stasis of the “pose,” to present for public adulation his perfected, muscular physique.  For this reason, bodybuilding will always be more art than “sport,” its efforts at official Olympic recognition notwithstanding, and it will never comfortably coexist with the “body-hating,” puritanical elements of Protestant Christianity. 

[16] Where the Apostle, at I Corinthians 6: 19, 20 (Revised Standard Version, The King James Bible) writes: “Do you not know that your body is a temple of the Holy Spirit within you, which you have from God?  You are not your own; you are bought with a price.  So glorify God in your body.”  Bodybuilding seeks to glorify the body as an end unto itself, making gods out of men.  This is the fundamental tension that underlies the steroid debate in current legislative and enforcement practice and why promoting muscle growth with steroids is seen as an “evil.”

[17] See, Armen Keteyian, HBO Real Sports (June 21, 2005), The Contrarian View, available at:  http://www.hbo.com/realsports/stories/062105_contrarianview.html (last visited February 27, 2006). 

[18] Charles Lane, High Court Reviews Texas Redistricting, The Wash. Post (March 2, 2006) at A08.  The case made news originally when Democratic legislators fled the State of Texas to forestall a vote on the plan.

[19] R. Jeffrey Smith, Texas Non-Profit is Cleared After GOP-Prompted Audit, The Wash. Post (Feb. 27. 2006) at A03.

[20] Id.

[21] Anthony Champagne, Campaign Contributions in Texas Supreme Court Races,  17 Law, Crime and Social Change 91 (1992);  Justice for Sale, Frontline (PBS television Broadcast, November 23, 1999)(transcript on file with the author).

[22] Id.

[23] Id.

[24] E.g., Smith v. Texas, 543 U.S. 37, 125 S. Ct. 400 (2004); see also, Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005) (which affirmed a decision by the Missouri Supreme Court that the imposition of the death penalty on juvenile offenders was “cruel and unusual punishment” within the meaning of the Eighth Amendment. Justice Anthony Kennedy was roundly criticized by the conservative establishment for reaching his conclusions based on what he considered a “consensus” of states, that imposing the death penalty on juveniles constituted cruel and unusual punishment, and for relying on international law. Texas’s high numbers of juvenile executions figured prominently in the court’s “consensus” calculus, finding Texas far outside the mainstream).

[25] The terms of Anderson and Chang have expired.  Kirksey is still seated on the TSBME, now renamed the “Texas Medical Board.”

[26] See, Texans for Public Justice, Governor Bush’s Well-Appointed Texas Officials, available at: http://www.tpj.org/docs/2000/10/reports/appointments/boards.html (last visited February 27, 2006).

[27] There are so many tales of political manipulation of Texas administrative agencies, recounting them is simply beyond the scope of this limited consideration.  One particularly malodorous example, however, comes to mind:  Texas got the dubious distinction in 1995 for being the principal dumping ground for New York City sewage sludge, a credit the State of Oklahoma ferociously resisted.  Opponents of the proposed contract award to Merco Joint Venture, the sludge contractor, noted the speed with which the contract proposal was approved by the Texas Water Commission after Merco made a $1.5 million contribution to Texas Tech University to study the “benefits” of sludge sewage disposal, approval it won without an environmental impact study or serious opportunity for public process or debate.  Merco Joint Venture was subsequently tied to organized crime elements.  See, Allen R. Myerson, Flood of Money Wins an Uneasy Home in Texas for New York City Waste, The N. Y Times, (July 17, 1995) at B02. 

[28] See, e.g., Spencer Ackeman, Say Good-bye to the Good Bureaucrat, The New Republic (Aug. 19, 2002)(predicting the “nightmare” a politicized Department of Homeland Security, for instance, would be, particularly with its assimilation of agencies like FEMA).

[29] The Dallas Theological Seminary, with campuses in both Dallas and Austin holds itself out as a bastion of dispensational, fundamentalist Christianity, with the following tenets pillars of its theology:  1) the Trinity; 2) the full deity and humanity of Christ; 3) the spiritual lostness of the human race; 4) the substitutionary atonement and bodily resurrection of Christ; 5)salvation by faith alone in Christ alone; 6) the physical return of Christ; and, 7)the authority and inerrancy of Scripture.  See, Dallas Theological Seminary Home Page, available at:  http://www.dts.edu (last visited February 27, 2006).  The Southern Baptist Convention’s Richard Land is also a native Texan, the son of a Houston welder.  Michael Lind detailed the influence that the eccentric, dispensational theology of Cyrus Scofield espoused by the Dallas Theological Seminary has had on the Presidency of George Bush in Made in Texas (Basic Books, 2002).  According to Lind, a native Texan, the politics of Texas is “steeped in racism, environmental exploitation, jingoistic militarism, crony capitalism, an anti-public education bias and a fundamentalist evangelicalism inconsistent with the separation of church and state.”

[30] Camille Paglia, The Magic of Images: Word and Picture in a Media Age, 13 Arion: A Journal of Humanities and the Classics 3 (Boston Univ., Fall, 2003), available at:  http://www.bu.edu/arion/Paglia_11.3/Paglia_Magic%20of%20Images.htm (last visited February 27, 2006).

[31] Id.

[32] Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)(in which the Supreme Court of the United States struck down student prayer at a Texas high school’s football games).  Prayer at high school football games in Texas is hardly a surprise, moreover, given the fact that “high school football is big-time religion in Texas.”  Bob Frisk, Six-Man Football Becomes Star in “Where Dreams Die Hard,” Chi. Daily Herald (October 14, 2005) at 1 of Sports Extra Section.

[33] Football and team sports in America emerged, as Clifford Putney and others have pointed out, note 15, supra, largely out of Kingsley’s Muscular Christianity movement in Victorian England, work that was a reaction to the genteel effeminacy of the Anglican clergy.  Out of Muscular Christianity, the rugged team sports programs of the Protestant Ivy League and Catholic Notre Dame emerged in the United States, the same movement which gave rise to the emergence of the YMCA. It is important to understand that football, arguably the most ruggedly physical of team sports with its British antecedent, rugby (advanced by Kingsley to toughen up young British men), was established in late 19^th and early 20^th century America as part of an inherently religious project. 

[34] “Doctrine”  is defined as:  “a principle or position or the body of principles in a branch of knowledge or system of belief;” Merriam Webster Online, available at: http://www.m-w.com/dictionary/doctrine (last visited February 27, 2006); “dogma” is defined as: “a doctrine or body of doctrines concerning faith or morals formally stated and authoritatively proclaimed by a church;” Merriam Webster Online, available at: http://www.m-w.com/dictionary/dogma  (last visited February 27, 2006).  See, In re: Michael C. Scally, M.D., No. 503-02-4145, Respondent’s Objections to the ALJ’s Proposal for Decision, at No. 205, stating that: “Dogma are those opinions held as established or put forth as an authoritative or expert opinion but that have little or no supportive empirical evidence from primary sources.”

[35] See, Sweitzer, supra note 7, in which I discuss the language used by Democratic Senator Biden – a good Catholic originally from Scranton, Pennsylvania - and the members of the legislative committee hearing testimony of Yesalis and other expert witnesses, and discuss the particular objection of Rep. Dan Lungren to steroid use in collegiate football, whose son was trying to make the Notre Dame team.  Notre Dame has been identified by Putney and others as the Catholic laboratory in which the principles of Muscular Christianity played out on the gridiron.  See, Putney, supra note 34.

[36] See, Biden Measure to Ban Designer Steroids Becomes Law (Press Release of Senator Joseph R. Biden, October 22, 2004) available at: http://biden.senate.gov/newsroom/details.cfm?id=227653 (last visited February 27, 2006), in which the Senator notes with aplomb:

"This new law sends a strong message about andro and other steroid precursors – we are calling them what they really are: drugs, performance enhancing drugs. They should be labeled as such, they should be treated as such, and now, thanks to this new law, they will be controlled in the same manner as other anabolic steroids."

“It’s not only a health issue but also a values issue,” Biden continued. “If kids think that all of the best athletes are ‘on the juice,’ what does that teach them? I think it teaches them that they should use steroids or steroid precursors to get ahead and win the game; that cheating is OK. This offends me to my core. The United States is the ultimate meritocracy and it is absolutely un-American to take a performance-enhancing drug to get an unfair competitive advantage.”  (emphases added).

[37] Gregg Jones and Garry Jacobson, The Secret Edge:  Steroids in High Schools, The Dallas Morning News (February 6, 2005) at 7.

[38] Taylor Hooton Foundation, Home, available at:  http://www.taylorhooton.org (last visited March 2, 2006).

[39] Id.

[40] Tex. H.B. No. 3563 (2005), codified as amended at Tex. Educ. Code Ann. § 33.091 (2005). The Texas statute retains the requirement that in order to be considered an “anabolic steroid,” the drug or hormone precursor must have demonstrated muscle-building properties. The recently-enacted “Education” provision includes a requirement that to participate in school athletics programs, a student athlete must provide a signed statement from his or her parents, indicating the parent is aware that use of steroids for “bodybuilding, muscle enhancement, or the increase of muscle bulk or strength … by a person who is in good health is not a valid medical purpose” … and “is a criminal offense punishable by confinement in jail or imprisonment in the Texas Department of Criminal Justice.” Tex. Educ. Code Ann. §§ 33.901(b)(2)(B),(D)

[41] Mr. Hooton’s testimony before the Committee is excerpted as follows: 

“I believe the poor example being set by professional athletes is a major catalyst fueling the high usage of steroids amongst our kids. Our kids look up these guys – they want to do those things that the pros do to be successful. With this in mind, I have some messages for the players: 

First, I am tired of hearing you tell us that kids should not look up to you as role models. If you haven’t figured it out yet, let me break the news to you, you are role models whether you like it or not. And parents across America should hold you accountable for behavior that inspires our kids to do things that put their health at risk and teaches them that the ethics we try to teach them at home somehow don’t apply to you.

Second, our kids know that the use of steroids is high amongst professional athletes. They don’t need to read Mr. Canseco’s new book to know that something other than natural physical ability is providing many of you with the ability to break so many performance records that provide you the opportunity to earn those millions of dollars.

With respect to the sacred home run record, I think Reggie Jackson’s comments on this subject are instructional: ‘Somebody is definitely guilty of taking steroids. You can’t break records hitting 200 home runs in 3 or 4 seasons. The greatest hitters in the history of the game didn’t do that. Henry Aaron never hit 50 in a season, so you’re going to tell me that you’re a greater hitter than Henry Aaron? Bonds hit 73 in 2001, and he would have hit 100 if they had pitched to him. I mean, come on now.’ Our youngsters hear the message: it’s loud, it’s clear, and it’s wrong – ‘if you want to achieve your goals, it is okay to use steroids to get you there because the pros are doing it.’ It is a real challenge for today’s parents to overpower the strong messages being sent to our kids by your behavior.

Third, players that are guilty of taking steroids are not only cheaters but you are also cowards. You are afraid to step onto the field, compete for your positions, and play the game without the aid of substances that are a felony to possess without a legitimate prescription; substances that have been banned from competition at all levels of athletics.

Not only that, you are cowards when it comes to facing your fans and the kids. Why don’t you behave like we try to teach our kids to behave? Show our kids that you are man enough to face authority, tell the truth, and face the consequences. Instead, you hide behind the skirts of your union and now, with the help of management and your lawyers, you have made every effort to resist facing the public today. What message are you sending our sons and daughters? That you are above the law? That you can continue to lie, deny your behavior, and get away with it? That somehow you are not a cheater unless you get caught?

Your attorneys say they are worried about how your public testimony will play in a court of law – but, how do you think your refusals to talk are playing in the court of public opinion? The national jury of young people has already judged your actions and concluded that many of you are guilty of using illegal performance enhancing drugs. But instead of convicting you, they have decided to follow your lead. And in tens of thousands of homes across this country, our 16 and 17-year-old children are injecting themselves with steroids – just like big leaguers do.

Your union leaders want us to be sensitive to your right to privacy. Right to privacy?

What about our rights as parents - our rights to expect that the adults that our kids all look up to will be held to a standard that does not include behavior that is dangerous, felonious and is cheating?” (emphasis added).

[42] John Burge, Legalize and Regulate:  A Prescription for Reforming Anabolic Steroid Legislation, 15 Loy. L.A. Ent. L. J. 33 (1994).

[43] Id.

[44] Jose Canseco, Juiced: Wild Times, Rampant 'Roids, Smash Hits, and How Baseball Got Big (Harper Collins Pubs., 2005).

[45] Burge, supra, note 42.  As Burge pointed out, the combination of a huge, unmonitored supply of the drugs in tandem with unmonitored, furtive use, has become a game of “Russian roulette” for even professional athletes.  For high school adolescents, it portends shocking ramifications.

[46] William J. Cromie, Testosterone Drives Away the Blues, Harvard Univ. Gazette (Jan. 9, 2003) available at: http://www.news.harvard.edu/gazette/2003/01.09/01-testosterone.html  (last visited March 1, 2006)(detailing the results of Pope’s recent study with AndroGel, a dermal-release patch formulation of testosterone, in treating depression in men).

[47] The National Institute for Drug Abuse conducted targeted behavioral studies to establish a link between ”abuse” of anabolic steroids and negative behaviors such as aggression, paranoia, and irritability.  Though its study tends to establish the link in three out of four specific study groups given “high dosages,” NIDA’s official statement remains noncommittal on the question.  See National Institute on Drug Abuse, Research Report Series, Publication No. 00-3721 Anabolic Steroid Abuse, available at:  http://www.drugabuse.gov/PDF/RRSteroi.pdf  (accessed March 1, 2006).

[48] Brower, K.J. Withdrawal from Anabolic Steroids. 6 Current Therapy in Endocrinology and Metabolism  338-343 (1997).

[49] See Jack Darkes, Androgenic-Anabolic Steroids and Suicide: A Brief Review of the Evidence, available at:  <http://www.mesomorphosis.com/articles/darkes/anabolic-steroids-and-suicide.htm> (last visited, April 29, 2006).  Darkes, in particular, points out that Taylor Hooton had been diagnosed with depression and was taking the prescription medication, Lexapro (escitalopram oxalate), one of the SSRI (select serotonin reuptake inhibitors) class of anti-depressants.  The FDA-approved package insert for Lexapro  (Forest Laboratories, 2005) contains the following warning: 1. There is a Risk of Suicidal Thoughts or Actions: Children and teenagers sometimes think about suicide, and many report trying to kill themselves. Antidepressants increase suicidal thoughts and actions in some children and teenagers. (emphasis added).  This information was curiously absent from the congressional hype in March, 2005, arguably suppressed by a Congress beholden to the interests of the pharmaceutical lobby.

[50] Keteyian, supra, note 17.

[51] Burge, supra, note 42.

[52] Id. at 56-58.

[53] Prosecutors, however, occasionally go too far and create the impression that partisan politics – rather than the politics of public opinion - is driving prosecutions. Eric Rich, DiBiagio Will Step Down As U.S. Attorney for Md., The Wash. Post (Dec. 4, 2004) at A01.

[54] Editorial, Medical Examiners Need Powers – And Will, The Dallas Morning News (August 7, 2002) at 18A.

[55] Editorial, Radical Surgery: State needs to Excise Shoddy Doctors, The Dallas Morning News  (Feb. 15, 2003) at 30A-.

[56] Tom Banning, The Texas Family Physician, Legislative Update (April/May/June 2003), available at:  http://www.tafp.org/TFP/AMJ2003/leg.htm (last visited March 13, 2006).

[57] See, the Texas Medical Liability Trust, Proposition 12 Success, available at: http://www.tmlt.org/physicianadvocacy/success.html (last visited March 13, 2006).

[58] Letter of Robert Simpson, Assistant General Counsel, Texas Medical Board, to Katherine M. Cary, Chief, Open Records Division, Office of the Attorney General (January 9, 2006)(on file with the author).

[59] Tex. Gov’t Code Ann. § 552.101 (2005), creates an exception from disclosure of “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.” The Attorney General also relied on Tex. Occ. Code Ann. § 164.007(c) (2005), which provides: Each complaint, adverse report, investigation file, other investigation report, and other investigative information in the possession of or received or gathered by the board or its employees or agents relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or its employees or agents involved in discipline of a license holder. For purposes of this subsection, investigative information includes information relating to the identity of, and a report made by, a physician performing or supervising compliance monitoring for the board.

[60] Letter of Philip J. Sweitzer to Robert D. Simpson, Esq., (March 20, 2006) (on file with the author).  The TMB, however, eventually agreed to disclose much more information to the author, providing an additional 3,900 pages.  The author eventually procured these in  searchable and hyperlinked electronic (.pdf) format from Dr. Scally’s Counsel, L.T. Bradt, Esq., which was extremely facilitative in reviewing the voluminous documentary evidence in the case.

[61] See, Letter of Robert D. Simpson, Assistant General Counsel, Texas Medical Board, to Katherine M. Cary, Chief, Open Records Division, Office of the Attorney General (January 9, 2006) (on file with the author).

[62] It is the typical experience of strength athletes using anabolic steroids, that they know more about the drugs and potential side effects than physicians they consult for treatment.  Matt Alavi, a Texas bodybuilder who now associates himself with the Taylor Hooton Foundation, wrote electronic mail in response to this author’s question of him, in which he stated:  “Q.: If my use had been strictly dosed by a physician and my health overseen by a physician would I have gone through what I went through?  A.: Hard to say.  I went to over a dozen doc's [sic] after my cycle to get help, none of these doc's [sic] helped me at all.  Most of them didn't know anything about steroids and how to regain normal hormone levels and reduce immune and endocrine dysfunction brought on by use of anabolics.  Most doc's [sic] I speak with now, don't even know what anabolic steroids do in healthy people.”  Electronic mail from Matt Alavi to Philip J. Sweitzer (March 13, 2006) (on file with the author) (emphasis added); see also, What Steroids Did for Me (Matt Alavi’s story), available at: http://www.taylorhooton.org/mattalavi.asp (last visited, March 13, 2006).

[63] Tex. Occ.  Code Ann. § 164.007(c) (2005).

[64] See, e.g., State v. Carroll, 383 Md. 599, 859 A.2d 1138 (2004). This is particularly true in criminal proceedings, and the author is speaking from his own experience as a Maryland practitioner.  None of the “analysis” of this Article relating to standards of review purports to give “legal” advice; instead, the author’s purpose is merely to comment on how differing standards of review in Texas impose a higher burden on appellants, and how imposing that higher burden insulates the decision of the executive agency from meaningful revision by appellate tribunals.

[65] Granek v. Texas State Board of Medical Examiners, 172 S. W. 3d 761 (Tex. 2005).

[66] Id.

[67] Id.

[68] Id.  By way of contrast, in Maryland, where the author is a licensed practitioner, though “substantial evidence” is the standard under which administrative agency decisions are reviewed, factual determinations are reviewed under a “clearly erroneous” standard.  Little or no deference is afforded agency determinations on purely legal questions, where a reviewing court “would not hesitate to substitute its judgment for that of the agency.”  Angelini v. Harford County, 143 Md. App. 369 798 A.2d 26 (2002).  Though still highly deferential to the administrative law judge’s findings of fact, an appellate tribunal in Maryland is permitted to substitute its judgment on the facts for the administrative law judge’s findings, if the higher court finds that the administrative law judge’s findings of fact were “clearly erroneous.”  Id.  In the instant case, the ALJ found that anabolic steroids are “dependency producing.”  .  The author believes that, were the ALJ’s findings of fact reviewed by an appellate court in Maryland, that finding of fact – one crucial to the agency’s position - would not withstand scrutiny.  From the legislative history of the Anabolic Steroid Control Act of 1990, it is indisputable that neither the Drug Enforcement Agency nor the American Medical Association believed that androgenic, anabolic steroids had any serious potential for abuse as addictive agents.  See Steroids in Amateur and Professional Sports – The Medical and Social Costs of Steroid Abuse, S. Hrg. 101-736 (1988).

[69] Id.

[70] Id.

[71] Id.

[72] Id.

[73] Id.

[74] Boykin v. Alabama, 395 U.S. 238 (1969) (in which the Supreme Court of the United States expressly conceded nearly forty years ago that most criminal convictions – recent estimates put the numbers at close to 90% - are procured by state prosecutors without the formality of a trial, upon pleas of guilty by criminal defendants.)

[75] We note, however, that physicians are typically an economically privileged class of civil litigant, with the means to contest state administrative agency action.  However, even so, the fact remains that, as with criminal appellants, exhausting every avenue of appeal frequently fails.  The “presumption of correctness” inherent in judicial determinations militates against reversal. 

[76] See, Michael C. Scally, M.D. v. Texas State Board of Medical Examiners, available at:  http://www.mesomorphosis.com/articles/scally/scally-vs-tsbme.htm (last visited March 16, 2006).

[77] Phentermine is an FDA-approved appetite suppressant.

[78] Pondimin, or Fenfluramine, is an FDA-approved appetite suppressant.  Prescribed in combination with Phentermine, the drugs are commonly known as Phen-Fen.

[79] Hypogonadism is a reduced or absent secretion of hormones from the sex glands (gonads). In men, these are the testes; in women, the ovaries.  Medline Medical Dictionary, available at: http://www.nlm.nih.gov/medlineplus/ency/article/001195.htm.

[80] Human Chorionic Gonadotropin is the glycoproteic hormone normally secreted by trophoblastic cells of the placenta during pregnancy.

[81] Clomiphene citrate tablets (Clomid) USP is an orally administered, non steroidal, ovulatory stimulant designated chemically as 2[p-(2- chloro-1,2-diphenylvinyl) phenoxy]] trieth lamine citrate (1:1). It has the molecular formula of C₂₆H₂₈ClNO•C₆H₈O₇ and a molecular weight of 598.09.  Physician’s Desk Reference (hereinafter, “PDR”) (Thomson, 2006) at ---.  Clomiphene citrate has been shown effective in treating hypo-gonadism. See, Guay AT, Bansal S, & Heatley GJ.,  Effect of Raising Endogenous Testosterone Levels in Impotent Men with Secondary Hypogonadism: Double blind Placebo-controlled Trial with Clomiphene Citrate.  80 J. Clin. Endocrinol Metab. 3546-3552 (1995).

[82] Tamoxifen Citrate Tablets, a non-sterodial anti-estrogen, are for oral administration and contain 15.2 mg of Tamoxifen Citrate (equivalent to 10 mg of tamoxifen). In addition, each tablet contains as inactive ingredients: carboxymethylcellulose calcium, magnesium stearate, mannitol and starch.  Chemically, Tamoxifen Citrate is the trans-isomer of a triphenylethylene derivative. The chemical name is (Z)2-[4-(1,2-diphenyl-1-butenyl) phenoxy]-N, N-dimethylethanamine 2- hydorxy-1,2,3-propanetricarboxylate (1:1).  PDR (Thomson, 2006) at ---. Tamoxifen has also been shown effective in treating male hypo-gonadism as an anti-estrogen.  The TBSME’s medical expert admitted that use of Tamoxifen to treat gynecomastia in men was supported by scientific literature.  Tex. State Board of Medical Examiners v. Scally, (SOAH No. 503-02-4145), T. 1446 at 19-21.

[83] Proscar* (finasteride), a synthetic 4-azasteroid compound, is a specific inhibitor of steroid Type II 5α-reductase, an intracellular enzyme that converts the androgen testosterone into 5α-dihydrotestosterone (DHT). Finasteride is 4-azaandrost-1-ene-17-carboxamide, N-(1,1-dimethylethyl)-3-oxo-,(5α,17β)-. The empirical formula of finasteride is C23H36N2O2 and its molecular weight is 372.55.  Proscar Package Insert, Prescribing Information, (Merck and Co., Inc., 2004).

[84] Albuterol is a bronchodilator used in treating asthma and other conditions with reversible airway obstruction.  PDR (Thomson, 2006) at ---. 

[85] Arimidex (Anastrazole) is an estrogen inhibitor used in the treatment of breast cancer in women. PDR (Thomson, 2006) at 665.

[86] An androgenic, anabolic steroid.

[87] An androgenic, anabolic steroid.

[88] Humatrope (Somatropin, rDNA Origin, for Injection) is a polypeptide hormone of recombinant DNA origin. The amino acid sequence of the product is identical to that of human growth hormone of pituitary origin.  Humatrope Package Insert, (Eli Lilly France, S.A.S., 2005)

[89] An androgenic, anabolic steroid.

[90] An androgenic, anabolic steroid.

[91] An androgenic, anabolic steroid.

[92] An androgenic, anabolic steroid.

[93]   Femara ^® (letrozole tablets) for oral administration contains 2.5 mg of letrozole, a nonsteroidal aromatase inhibitor (inhibitor of estrogen synthesis). It is chemically described as 4,4'-(1H-1,2,4-Triazol-1-ylmethylene)dibenzonitrile.  PDR (Thomson, 2006) at ----.  Femara is an aromatization inhibitor that prevents the body from converting testosterone to estradiol.  At Dr. Scally’s hearing, the State’s expert identified Femara and Arimidex, another aromatization inhibitor, as androgenic, anabolic steroids, which neither is. Tex. State Board of Medical Examiners v. Scally, (SOAH No. 503-02-4145), T. 1174 at 3.

[94] Niaspan ®(niacin extended-release tablets), contains niacin, which at therapeutic doses is an antihyperlipidemic agent. Niacin (nicotinic acid, or 3-pyridinecarboxylic acid) is a white,crystalline powder, very soluble in water.  Niaspan Package Insert, (Kos Pharmaceuticals, Inc., 2005).  Niaspan is typically dispensed to treat high levels of low density lipoprotein, or “bad cholesterol.”

[95] See discussion of Arimidex, supra, note 85.

[96] Desyrel (trazodone hydrochloride) is an antidepressant chemically unrelated to tricyclic, tetracyclic, or other known antidepressant agents. Trazodone hydrochloride is a triazolopyridine derivative designated as 2-[3-[4-(3-chlorophenyl)-1-piperazinyl]propyl]-1,2,4-triazo-lo[4,3-a] pyridin-3(2H)-one hydrochloride. It is a white odorless crystalline powder which is freely soluble in water. Its molecular weight is 408.3.  PDR (Thomson, 2006) at 3376.

[97] An essential amino acid and precursor of the hormone serotonin.

[98] Valium (Diazepam) is a member of the benzodiazepine family. Benzodiazepines are sedatives that cause dose-related depression of the central nervous system. They are useful in treating anxiety, insomnia, seizures, and muscle spasms.  PDR (Thomson, 2006) at 2822.

[99] Eldepryl (selegiline hydrochloride) is a levorotatory acetylenic derivative of phenethylamine. It is commonly referred to in the clinical and pharmacological literature as l-deprenyl. The chemical name is: (R)-(-)-N,2-dimethyl-N-2-propynylphenethylamine hydrochloride. Eldepryl is typically dispensed for the treatment of Parkinson’s disease, and is believed to work to inhibit or prevent the breakdown of the hormone dopamine in the brain.  PDR, (Thomson, 2006) at 3209.

[100] Tamiflu, an anti-viral for the treatment of influenza (oseltamivir phosphate), is available as a capsule containing 75 mg oseltamivir for oral use, in the form of oseltamivir phosphate, and as a powder for oral suspension, which when constituted with water as directed contains 12 mg/mL oseltamivir base.  PDR, (Thomson, 2006) at 2810-.

[101] Caverject is an injectable vasodilator for the treatment of impotence, injected directly into the penis. It contains alprostadil as the naturally occurring form of prostaglandin E1 (PGE1) and is designated chemically as (11􀁟,13E,15S)-11,15-dihydroxy-9-oxoprost-13-en-1-oic acid.  PDR, (Thomson, 2006) at 2610.

[102] An androgenic, anabolic steroid.

[103] An antibiotic typically prescribed for acne.  PDR (Thomson, 2006) at 1859.

[104] A topical medication used to treat acne. PDR (Thomson, 2006) at 1211.

[105] Pyridium (Phenazopyridine HCl) is a urinary tract analgesic, prescribed to relieve symptomatic pain, burning, urgency, frequency, and other discomforts arising from irritation of the lower urinary tract mucosa caused by infection, trauma, surgery, endoscopic procedures, or the passage of sounds or catheters.  PDR,  (Thomson, 2006) at 3374.

[106] An extremely powerful medication used to treat acne.  PDR (Thomson, 2006) at 2240.

[107] Dyazide and SB. Hydrochlorothiazide is a diuretic/antihypertensive agent and triamterene is an antikaliuretic agent.  PDR (Thomson, 2006) at 1383.

[108] An androgenic, anabolic steroid.

[109] A non-steroidal, anti-inflammatory medication.

[110] PDR (Thomson, 2006) at 1642.

[111] PDR (Thomson, 2006) at 2110.

[112] An androgenic, anabolic steroid.

[113] An over-the-counter antihistamine preparation used in the treatment of allergies.

[114] A broncho-dilator used in the treatment of asthma.

[115] The AMA is an acronym for the American Medical Association, which has as one of its stated policy goals a legislative campaign at the federal level for nationalization of medical liability standards, to cap non-economic damages at $250,000.00, with that goal tied to the “reduc[tion of] medical liability premiums.”  Simply put, the AMA blames trial lawyers for higher insurance costs for doctors, despite the fact that research doesn’t support such a simplistic conclusion. See, American Medical Association, Medical Liability Reform Page, available at: <http://www.ama-assn.org/ama/pub/category/7861.html > (last visited, May 2, 2006). The Congressional Budget Office, however, in a January, 2004, brief concluded: “In short, the evidence available to date does not make a strong case that restricting malpractice liability would have a significant effect, either positive or negative, on economic efficiency. Thus, choices about specific proposals may hinge more on their implications for equity--in particular, on their effects on health care providers, patients injured through malpractice, and users of the health care system in general.”  See, Brief of Congressional Budget Office, Limiting Tort Liability for Medical Malpractice (January 8, 2004), available at: ,http://www.cbo.gov/showdoc.cfm?index=4968&sequence=0> (last visited, May 2, 2006)(emphasis added). Tort reform proposals are strongly promoted by insurance industry and physician practice groups, whose simplistic one plus one equals two presentation of the issue (lawyers plus high-damage awards equals higher malpractice premiums) simply can’t be reconciled with the facts:  insurance investment performance and short-term factors – high payouts from natural disasters, etc. – drive premium payments just as assuredly as damage awards.

[116] The author has procured a full transcript of the proceedings, which shed light on the highly innovative nature of Dr. Scally’s practice specialty and the Board’s need to completely discredit him. Discussing Grubb v. Borough of Hightstown, 331 N.J. Super. 398, 751 A.2d 1119 (Law Div. 2000); 333 N.J. Super. 592, 756 A.2d 639 (Law Div. 2000); 353 N.J. Super 333, 802 A.2d 596 (2002), I noted previously: “That the government will never tolerate such overt dissent …seems all the more obvious by its action here:  it must completely discredit individuals who have the audacity to expose officiaL…hypocrisy.” Sweitzer, supra, note 7 at 223.  That maxim appears to apply in Dr. Scally’s case.

With that said, however, the lack of competence of the Board’s expert testimony in the case truly boggles the mind.  For example, discussing one of Dr. Scally’s patients, J. Bi., Dr. W, the Board’s expert, commented that she could not be perimenopausal because she was only 34 years old, and should have been tested for pregnancy.  Tex. State Board of Medical Examiners v. Scally, (SOAH No. 503-02-4145), T. 1961-1962 In fact, the patient was 44 years old.  T. at 1962.  Neither Dr. J nor Dr. W had specific experience with any of the androgenic anabolic steroids at issue in the case.  T. at 501-. Both of them were unaware the human growth hormone is not a Schedule III drug.  T. at 130 Neither of them had any experience at all with “stacking” and “cycling” regimens commonly used by strength athletes and bodybuilders, in particular.  T. at 1923.  Moreover, both of them admitted that “off-label” use of prescription medications is routine practice by physicians, not below the standard of care, and inherent to practicing “innovative, evidence-based medicine.”  T. at 490.  At one point in the proceeding, Mr. Bradt completely shuts down one of the Board’s experts, after he admits on the stand that “I’m not an expert…” about use of anabolics by strength athletes. T.  at 1940-1956.  Dr. Scally, conversely, presented Dr. Mauro DiPasquale as his expert, a physician – and powerlifter – truly expert in the field,  by deposition.

[117] An “admission” is a “voluntary acknowledgment of the existence of facts relevant to an adversary’s case;” Black’s Law Dictionary (7^th ed., 1999) at 48; a “stipulation” is a “voluntary agreement between opposing parties concerning some relevant point or fact;” Black’s Law Dictionary (7^th ed., 1999) at 1427.

[118] Tex. State Board of Medical Examiners v. Scally, (SOAH No. 503-02-4145),(Filed July 28, 2003).

[119] Judge Egan’s biographical information is not readily available through many of the standard legal databases.

[120] By contrast, in Maryland, the author’s home jurisdiction, a party aggrieved by the decision of a State Administrative Law Judge would appeal his or her ruling directly to the Circuit Court, Maryland’s court of general jurisdiction, by way of a Petition for Judicial Review.  Md. Rule 7-202.  The case, therefore, would go straight to appeal without having to “try again” a second time before the ALJ. Considering that judges are rarely likely to review their own determinations adversely, this requirement of Texas administrative procedure seems intended to frustrate the entire process of appellate review, by putting an extra procedural burden on the appellant.