500 U.S. 160 (1991)
In 1970, Congress enacted the Controlled Substances Act, which establishes five schedules of controlled substances and regulates their manufacture, possession, and distribution.1 In 1984, Congress amended the Act to authorize the Attorney General to schedule substances temporarily when necessary to avoid an imminent hazard to public safety.2 The amendment allows the Attorney General to bypass several procedural requirements applicable to permanent scheduling, including the full notice-and-hearing provisions of the Administrative Procedure Act and consideration of all eight statutory factors.3
The Attorney General promulgated regulations delegating his powers under the Act, including temporary scheduling authority, to the Drug Enforcement Administration.4 Pursuant to that delegation, the DEA Administrator issued an order temporarily scheduling 4-methylaminorex, known as “Euphoria,” as a schedule I controlled substance, published in the Federal Register in 1987.5 The Administrator later initiated permanent scheduling procedures for the substance.6
While the temporary scheduling order remained in effect, DEA agents executed a search warrant at the home of Daniel and Lyrissa Touby and discovered a fully operational drug laboratory.7 The Toubys were indicted in the United States District Court for the District of New Jersey for manufacturing and conspiring to manufacture Euphoria.8 They moved to dismiss the indictment, challenging the constitutionality of the temporary scheduling provision and the validity of the subdelegation to the DEA.9
The district court denied the motion to dismiss in 1989.10 Following their convictions, the Court of Appeals for the Third Circuit affirmed the convictions in 1990.1112 The Supreme Court granted certiorari in 1991 to review the case.13
Whether § 201(h) of the Controlled Substances Act unconstitutionally delegates legislative power to the Attorney General?14
The Constitution provides that all legislative powers herein granted shall be vested in a Congress of the United States.15 From this language the Court has derived the nondelegation doctrine that Congress may not constitutionally delegate its legislative power to another branch of Government.16 The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government.17 The Court has long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance within proper limits from its coordinate Branches.18 Congress does not violate the Constitution merely because it legislates in broad terms leaving a degree of discretion to executive or judicial actors.19 So long as Congress lays down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform such legislative action is not a forbidden delegation of legislative power.20 The cases are not entirely clear as to whether more specific guidance is in fact required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions.21 Section 201(h) passes muster even if greater congressional specificity is required in the criminal context.22
No. Congress has placed multiple specific restrictions on the Attorney General's discretion to define criminal conduct through the requirements of sections 201(h) and 202(b).23 The Attorney General must find that scheduling is necessary to avoid an imminent hazard to the public safety.24 He must consider the drug's history and current pattern of abuse, the scope, duration, and significance of abuse, and what, if any, risk there is to the public health.25 The statute places special emphasis on actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution.26 The Attorney General must also publish 30-day notice in the Federal Register, transmit notice to the Secretary of HHS, and take into consideration any comments submitted by the Secretary.27 In addition, the Attorney General must find that the substance has a high potential for abuse, has no currently accepted medical use in treatment in the United States, and that there is a lack of accepted safety for use of the drug under medical supervision.28
These restrictions were satisfied when the DEA, under delegated authority, temporarily scheduled Euphoria after the 1987 Federal Register publication.29 The order remained in effect during the search of the Toubys' home leading to their indictment in the District of New Jersey.30 The district court denied the motion to dismiss in 1989. The Third Circuit affirmed the convictions in 1990. The Supreme Court granted certiorari in 1991.31 The temporary scheduling process enabled the Government to respond quickly to dangerous new drugs yet still imposed meaningful constraints that satisfy the constitutional requirements of the nondelegation doctrine.32
Section 201(h) does not unconstitutionally delegate legislative power to the Attorney General.33
Related opinions on this issue
Justice Marshall joined the Court's opinion but wrote separately to emphasize that the opportunity of a defendant to challenge the substance of a temporary scheduling order in the course of a criminal prosecution is essential to the result in this case.34 Section 811(h)(6) expressly prohibits direct review of a temporary scheduling order in the Court of Appeals but says nothing about judicial review of such an order in other settings.35 Under established rules of construction, we must presume from Congress' silence on the matter that it did not intend to foreclose review in the enforcement context.36
An additional consideration reinforces this principle here.37 As the Court notes, judicial review perfects a delegated-lawmaking scheme by assuring that the exercise of such power remains within statutory bounds.38 Because of the severe impact of criminal laws on individual liberty, an opportunity to challenge a delegated lawmaker's compliance with congressional directives is a constitutional necessity when administrative standards are enforced by criminal law.39
We must therefore read the Controlled Substances Act as preserving judicial review of a temporary scheduling order in the course of a criminal prosecution to save the Act's delegation of lawmaking power from unconstitutionality.40
Whether the Attorney General’s subdelegation of temporary scheduling authority to the DEA was authorized by statute?41
Section 501(a) of the Act states plainly that the Attorney General may delegate any of his functions under the Controlled Substances Act to any officer or employee of the Department of Justice.42 The Court has interpreted section 501(a) to permit the delegation of any function vested in the Attorney General under the Act unless a specific limitation on that delegation authority appears elsewhere in the statute.43 No such limitation appears with regard to the Attorney General's power to schedule drugs temporarily under section 201(h).44
Yes. The Attorney General promulgated regulations delegating to the DEA his powers under the Act including the power to schedule controlled substances on a temporary basis as reflected in 28 CFR section 0.100(b).45 Pursuant to that delegation the DEA Administrator issued the order temporarily scheduling Euphoria as a schedule I controlled substance in 1987.46 The Administrator subsequently initiated formal rulemaking procedures following which Euphoria was added permanently to schedule I.47
No specific limitation on the delegation authority appears with regard to temporary scheduling under section 201(h).48 The judgment of the Court of Appeals is affirmed.49
The Attorney General’s subdelegation of temporary scheduling authority to the DEA was authorized by statute.50