The Controlled Substances Act authorizes the Attorney General,
upon compliance with specified procedures, to add new drugs to five
"schedules" of controlled substances, the manufacture, possession,
and distribution of which the Act regulates or prohibits. Because
compliance with the Act's procedures resulted in lengthy delays,
drug traffickers were able to develop and market "designer drugs"
-- which have pharmacological effects similar to, but chemical
compositions slightly different from, scheduled substances -- long
before the Government was able to schedule them and initiate
prosecutions. To combat this problem, Congress added § 201(h) to
the Act, creating an expedited procedure by which the Attorney
General can schedule a substance on a temporary basis when doing so
is "necessary to avoid an imminent hazard to the public safety,"
and providing that a temporary scheduling order is not subject to
judicial review. The Attorney General promulgated regulations
delegating,
inter alia, his temporary scheduling power to
the Drug Enforcement Administration (DEA), which subsequently
temporarily designated the designer drug "Euphoria" as a schedule I
controlled substance. While that temporary order was in effect,
petitioners were indicted for manufacturing and conspiring to
manufacture Euphoria. The District Court denied their motion to
dismiss, rejecting their contentions that § 201(h)
unconstitutionally delegates legislative power to the Attorney
General, and that the Attorney General improperly delegated his
temporary scheduling authority to the DEA. The Court of Appeals
affirmed petitioners' subsequent convictions.
Held:
1. Section 201(h) does not unconstitutionally delegate
legislative power to the Attorney General. Pp.
500 U. S.
164-169.
(a) The nondelegation doctrine does not prevent Congress from
seeking assistance from a coordinate Branch, so long as it lays
down an "intelligible principle" to which the person or body
authorized to act is directed to conform.
See, e.g., J. W.
Hampton, Jr. & Co. v. United States, 276 U.
S. 394,
276 U. S. 409.
Section 201(h)'s "imminent hazard to public safety" standard is
concededly such a principle. Moreover, even if more specific
guidance is required when Congress authorizes another Branch to
promulgate regulations that contemplate criminal sanctions, §
201(h)
Page 500 U. S. 161
passes muster. Although it features fewer procedural
requirements than the permanent scheduling statute, the section
meaningfully constrains the Attorney General by placing multiple
specific restrictions on his discretion to define criminal conduct.
He must also satisfy § 202(b)'s requirements for adding substances
to schedules. Pp.
500 U. S.
164-167.
(b) Section 201(h) does not violate the principle of separation
of powers by concentrating too much power in the Attorney General,
who also wields the power to prosecute crimes. The separation of
powers principle focuses on the distribution of powers among the
three coequal Branches of Government,
see Mistretta v. United
States, 488 U. S. 361,
488 U. S. 382,
and does not speak to the manner in which Congress parcels out
authority within the Executive Branch. P.
500 U. S.
167-168.
(c) Section 201(h) does not violate the nondelegation doctrine
by barring judicial review. Since § 507 of the Act plainly
authorizes judicial review of a permanent scheduling order, the
effect of the § 201(h) bar is merely to postpone legal challenges
to a scheduling order until the administrative process has run its
course. Moreover, the § 201(h) bar does not preclude an individual
facing criminal charges from bringing a challenge to a temporary
scheduling order as a defense to prosecution. In these
circumstances, the nondelegation doctrine does not require in
addition an opportunity for preenforcement review of administrative
determinations. Pp.
500 U. S.
168-169.
2. The Attorney General did not improperly delegate his
temporary scheduling power to the DEA. Section 501(a) of the Act --
which authorizes delegation of "any of [the Attorney General's]
functions" under the Act -- permits delegation unless a specific
limitation appears elsewhere in the Act.
See United States v.
Giordano, 416 U. S. 505,
416 U. S.
512-514. No such limitation appears with regard to the
temporary scheduling power. P.
500 U. S.
169.
909 F.2d 759 (CA3 1990), affirmed.
O'CONNOR, J., delivered the opinion for a unanimous Court.
MARSHALL, J., filed a concurring opinion, in which BLACKMUN, J.,
joined,
post, p.
500 U. S.
169.
Page 500 U. S. 162
JUSTICE O'CONNOR delivered the opinion of the Court.
Petitioners were convicted of manufacturing and conspiring to
manufacture "Euphoria," a drug temporarily designated as a schedule
I controlled substance pursuant to § 201(h) of the Controlled
Substances Act, 98 Stat. 2071, 21 U.S.C. § 811(h). We consider
whether § 201(h) unconstitutionally delegates legislative power to
the Attorney General and whether the Attorney General's
subdelegation to the Drug Enforcement Administration (DEA) was
authorized by statute.
I
In 1970, Congress enacted the Controlled Substances Act (Act),
84 Stat. 1242, as amended, 21 U.S.C. § 801
et seq. The Act
establishes five categories or "schedules" of controlled
substances, the manufacture, possession, and distribution of which
the Act regulates or prohibits. Violations involving schedule I
substances carry the most severe penalties, as these substances are
believed to pose the most serious threat to public safety. Relevant
here, § 201(a) of the Act authorizes the Attorney General to add or
remove substances, or to move a substance from one schedule to
another. § 201(a), 21 U.S.C. § 811(a).
When adding a substance to a schedule, the Attorney General must
follow specified procedures. First, the Attorney General must
request a scientific and medical evaluation from the Secretary of
Health and Human Services (HHS), together with a recommendation as
to whether the substance should be controlled. A substance cannot
be scheduled if the Secretary recommends against it. § 201(b), 21
U.S.C. § 811(b). Second, the Attorney General must consider eight
factors with respect to the substance, including its potential for
abuse, scientific evidence of its pharmacological effect, its
psychic or physiological dependence liability, and whether the
substance is an immediate precursor of a substance already
controlled. § 201(c), 21 U.S.C. § 811(c). Third, the Attorney
General must comply with the notice-and-hearing
Page 500 U. S. 163
provisions of the Administrative Procedure Act, 5 U.S.C. §§
551-559, which permit comment by interested parties. § 201(a), 21
U.S.C. § 811(a). In addition, the Act permits any aggrieved person
to challenge the scheduling of a substance by the Attorney General
in a court of appeals. § 507, 21 U.S.C. § 877.
It takes time to comply with these procedural requirements. From
the time when law enforcement officials identify a dangerous new
drug, it typically takes 6 to 12 months to add it to one of the
schedules. S.Rep. No. 98-225, p. 264 (1984), U.S.Code Cong. &
Admin.News 1984, p. 3182. Drug traffickers were able to take
advantage of this time gap by designing drugs that were similar in
pharmacological effect to scheduled substances but differing
slightly in chemical composition, so that existing schedules did
not apply to them. These "designer drugs" were developed and widely
marketed long before the Government was able to schedule them and
initiate prosecutions.
See ibid.
To combat the "designer drug" problem, Congress in 1984 amended
the Act to create an expedited procedure by which the Attorney
General can schedule a substance on a temporary basis when doing so
is "necessary to avoid an imminent hazard to the public safety." §
201(h), 21 U.S.C. § 811(h). Temporary scheduling under § 201(h)
allows the Attorney General to bypass, for a limited time, several
of the requirements for permanent scheduling. The Attorney General
need consider only three of the eight factors required for
permanent scheduling. § 201(h)(3), 21 U.S.C. § 811(h)(3). Rather
than comply with the APA notice-and-hearing provisions, the
Attorney General need provide only a 30-day notice of the proposed
scheduling in the Federal Register. § 201(h)(1), 21 U.S.C. §
811(h)(1). Notice also must be transmitted to the Secretary of HHS,
but the Secretary's prior approval of a proposed scheduling order
is not required.
See § 201(h)(4), 21 U.S.C. § 811(h)(4).
Finally, § 201(h)(6), 21 U.S.C. § 811(h)(6), provides that an order
to schedule a substance temporarily "is not subject to judicial
review."
Page 500 U. S. 164
Because it has fewer procedural requirements, temporary
scheduling enables the Government to respond more quickly to the
threat posed by dangerous new drugs. A temporary scheduling order
can be issued 30 days after a new drug is identified, and the order
remains valid for one year. During this 1-year period, the Attorney
General presumably will initiate the permanent scheduling process,
in which case the temporary scheduling order remains valid for an
additional six months. § 201(h)(2), 21 U.S.C. § 811(h)(2).
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.
See 28 CFR §
0.100(b) (1990). Pursuant to that delegation, the DEA Administrator
issued an order scheduling temporarily 4-methylaminorex, known more
commonly as "Euphoria," as a schedule I controlled substance. 52
Fed.Reg. 38225 (1987). The Administrator subsequently initiated
formal rulemaking procedures, following which Euphoria was added
permanently to schedule I.
While the temporary scheduling order was in effect, DEA agents,
executing a valid search warrant, discovered a fully operational
drug laboratory in Daniel and Lyrissa Touby's home. The Toubys were
indicted for manufacturing and conspiring to manufacture Euphoria.
They moved to dismiss the indictment on the grounds that § 201(h)
unconstitutionally delegates legislative power to the Attorney
General, and that the Attorney General improperly delegated his
temporary scheduling authority to the DEA. The United States
District Court for the District of New Jersey denied the motion to
dismiss, 710 F. Supp. 551 (1989), and the Court of Appeals for the
Third Circuit affirmed petitioners' subsequent convictions, 909
F.2d 759 (1990). We granted certiorari, 498 U.S. 1046 (1991), and
now affirm.
II
The Constitution provides that "[a]ll legislative Powers herein
granted shall be vested in a Congress of the United
Page 500 U. S. 165
States." U.S.Const., Art. I, § 1. From this language, the Court
has derived the nondelegation doctrine: that Congress may not
constitutionally delegate its legislative power to another Branch
of government. "The nondelegation doctrine is rooted in the
principle of separation of powers that underlies our tripartite
system of Government."
Mistretta v. United States,
488 U. S. 361,
488 U. S. 371
(1989).
We have long recognized that the nondelegation doctrine does not
prevent Congress from seeking assistance, within proper limits,
from its coordinate Branches.
Id. at
488 U. S. 372.
Thus, Congress does not violate the Constitution merely because it
legislates in broad terms, leaving a certain degree of discretion
to executive or judicial actors. So long as Congress
"lay[s] 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."
J.W. Hampton, Jr., & Co. v. United States,
276 U. S. 394,
276 U. S. 409
(1928).
Petitioners wisely concede that Congress has set forth in §
201(h) an "intelligible principle" to constrain the Attorney
General's discretion to schedule controlled substances on a
temporary basis. We have upheld as providing sufficient guidance
statutes authorizing the War Department to recover "excessive
profits" earned on military contracts,
see Lichter v. United
States, 334 U. S. 742,
334 U. S.
778-786 (1948); authorizing the Price Administrator to
fix "fair and equitable" commodities prices,
see Yakus v.
United States, 321 U. S. 414,
321 U. S.
426-427 (1944); and authorizing the Federal
Communications Commission to regulate broadcast licensing in the
"public interest,"
see National Broadcasting Co. v. United
States, 319 U. S. 190,
319 U. S.
225-226 (1943). In light of these precedents, one cannot
plausibly argue that § 201(h)'s "imminent hazard to the public
safety" standard is not an intelligible principle.
Petitioners suggest, however, that something more than an
"intelligible principle" is required when Congress authorizes
another Branch to promulgate regulations that contemplate
Page 500 U. S. 166
criminal sanctions. They contend that regulations of this sort
pose a heightened risk to individual liberty, and that Congress
must therefore provide more specific guidance. Our cases are not
entirely clear as to whether or not more specific guidance is in
fact required.
Compare Fahey v. Mallonee, 332 U.
S. 245,
332 U. S.
249-250 (1947), cited in
Mistretta, supra, 488
U.S. at
488 U. S. 373,
n. 7,
with Yakus, supra, 321 U.S. at
321 U. S.
423-427, and
United States v. Grimaud,
220 U. S. 506,
220 U. S. 518,
220 U. S. 521
(1911). We need not resolve the issue today. We conclude that §
201(h) passes muster even if greater congressional specificity is
required in the criminal context.
Although it features fewer procedural requirements than the
permanent scheduling statute, § 201(h) meaningfully constrains the
Attorney General's discretion to define criminal conduct. To
schedule a drug temporarily, the Attorney General must find that
doing so is "necessary to avoid an imminent hazard to the public
safety." § 201(h)(1), 21 U.S.C. § 811(h)(1). In making this
determination, he is "required to consider" three factors: the
drug's "history and current pattern of abuse"; "[t]he scope,
duration, and significance of abuse"; and "[w]hat, if any, risk
there is to the public health." §§ 201(c)(4)-(6), 201(h)(3), 21
U.S.C. §§ 811(c)(4) (6), 811(h)(3). Included within these factors
are three other factors on which the statute places a special
emphasis: "actual abuse, diversion from legitimate channels, and
clandestine importation, manufacture, or distribution." §
201(h)(3), 21 U.S.C. § 811(h)(3). The Attorney General also must
publish 30-day notice of the proposed scheduling in the Federal
Register, transmit notice to the Secretary of HHS, and "take into
consideration any comments submitted by the Secretary in response."
§§ 201(h)(1), 201(h)(4), 21 U.S.C. §§ 811(h)(1), 811(h)(4).
In addition to satisfying the numerous requirements of § 201(h),
the Attorney General must satisfy the requirements of § 202(b), 21
U.S.C. § 812(b). This section identifies the criteria for adding a
substance to each of the five schedules.
Page 500 U. S. 167
As the United States acknowledges in its brief, § 202(b) speaks
in mandatory terms, drawing no distinction between permanent and
temporary scheduling. With exceptions not pertinent here, it states
that
"a drug or other substance may not be placed in any schedule
unless the findings required for such schedule are made with
respect to such drug or other substance."
§ 202(b), 21 U.S.C. § 812(b). Thus, apart from the "imminent
hazard" determination required by § 201(h), the Attorney General,
if he wishes to add temporarily a drug to schedule I, must find
that it "has a high potential for abuse," that it "has no currently
accepted medical use in treatment in the United States," and that
"[t]here is a lack of accepted safety for use of the drug . . .
under medical supervision." § 202(b)(1), 21 U.S.C. § 812(b)(1).
It is clear that in §§ 201(h) and 202(b) Congress has placed
multiple specific restrictions on the Attorney General's discretion
to define criminal conduct. These restrictions satisfy the
constitutional requirements of the nondelegation doctrine.
Petitioners point to two other aspects of the temporary
scheduling statute that allegedly render it unconstitutional. They
argue first that it concentrates too much power in the Attorney
General. Petitioners concede that Congress may legitimately
authorize someone in the Executive Branch to schedule drugs
temporarily, but argue that it must be someone other than the
Attorney General, because he wields the power to prosecute crimes.
They insist that allowing the Attorney General both to schedule a
particular drug and to prosecute those who manufacture that drug
violates the principle of separation of powers. Petitioners do not
object to the permanent scheduling statute, however, because it
gives "veto power" to the Secretary of HHS. Brief for Petitioners
20.
This argument has no basis in our separation of powers
jurisprudence. The principle of separation of powers focuses on the
distribution of powers
among the three coequal
Page 500 U. S. 168
Branches,
see Mistretta, supra, 488 U.S. at
488 U. S. 382;
it does not speak to the manner in which authority is parceled out
within a single Branch. The Constitution vests all executive power
in the President, U.S.Const., Art. II, § 1, and it is the President
to whom both the Secretary and the Attorney General report.
Petitioners' argument that temporary scheduling authority should
have been vested in one executive officer rather than another does
not implicate separation of powers concerns; it merely challenges
the wisdom of a legitimate policy judgment made by Congress.
Petitioners next argue that the temporary scheduling statute is
unconstitutional because it bars judicial review. They explain that
the purpose of requiring an "intelligible principle" is to permit a
court to "
ascertain whether the will of
Page 500 U. S.
169
Congress has been obeyed.'" Skinner v. Mid-America
Pipeline Co., 490 U. S. 212,
490 U. S. 218
(1989), quoting Yakus, supra, 321 U.S. at 321 U. S. 426.
By providing that a temporary scheduling order "is not subject to
judicial review," § 201(h)(6), the Act purportedly violates the
nondelegation doctrine.
We reject petitioners' argument. Although § 201(h)(6), 21 U.S.C.
§ 811(h)(6), states that a temporary scheduling order "is not
subject to judicial review," another section of the Act plainly
authorizes judicial review of a permanent scheduling order.
See § 507, 21 U.S.C. § 877. Thus, the effect of §
201(h)(6) is merely to postpone legal challenges to a scheduling
order for up to 18 months, until the administrative process has run
its course. This is consistent with Congress' express desire to
permit the Government to respond quickly to the appearance in the
market of dangerous new drugs. Even before a permanent scheduling
order is entered, judicial review is possible under certain
circumstances. The United States contends, and we agree, that §
201(h)(6) does not preclude an individual facing criminal charges
from bringing a challenge to a temporary scheduling order as a
defense to prosecution.
See Brief for United States 34-36.
This is sufficient to permit a court to "
ascertain whether the
will of Congress has been obeyed.'" Skinner, supra, 490
U.S. at 490 U. S. 218,
quoting Yakus, supra, 321 U.S. at 321 U. S. 426.
Under these circumstances, the nondelegation doctrine does not
require, in addition, an opportunity for preenforcement review of
administrative determinations.
III
Having concluded that Congress did not unconstitutionally
delegate legislative power to the Attorney General, we consider
petitioners' claim that the Attorney General improperly delegated
his temporary scheduling power to the DEA. Petitioners insist that
delegation within the Executive Branch is permitted only to the
extent authorized by Congress, and that Congress did not authorize
the delegation of temporary scheduling power from the Attorney
General to the DEA.
We disagree. Section 501(a) of the Act states plainly that
"[t]he Attorney Genera may delegate any of his functions under
[the Controlled Substances Act] to any officer or employee of the
Department of Justice."
§ 501(a), 21 U.S.C. § 871(a). We have interpreted § 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.
See
United States v. Giordano, 416 U. S. 505,
416 U. S.
512-514 (1974). No such limitation appears with regard
to the Attorney General's power to schedule drugs temporarily under
§ 201(h).
The judgment of the Court of Appeals is Affirmed.
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN joins,
concurring.
I join the Court's opinion, but write separately to emphasize
two points underlying my vote. The first is my conclusion 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. Section 811(h)(6) of Title
21 U.S.C. expressly prohibits direct
Page 500 U. S. 170
review of a temporary scheduling order in the Court of Appeals
but says nothing about judicial review of such an order in other
settings. 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.
See Estep v.
United States, 327 U. S. 114,
327 U. S.
120-122 (1946).
See generally McNary v. Haitian
Refugee Center, Inc., 498 U. S. 479,
498 U. S. 496
(1991);
Abbott Laboratories v. Gardner, 387 U.
S. 136,
387 U. S.
140-141 (1967). An additional consideration reinforces
this principle here. As the Court notes, judicial review perfects a
delegated lawmaking scheme by assuring that the exercise of such
power remains within statutory bounds.
See, e.g., Skinner v.
Mid-America Pipeline Co., 490 U. S. 212,
490 U. S.
218-219 (1989). Because of the severe impact of criminal
laws on individual liberty, I believe that an opportunity to
challenge a delegated lawmaker's compliance with congressional
directives is a constitutional necessity when administrative
standards are enforced by criminal law.
Cf. United States v.
Mendoza-Lopez, 481 U. S. 828,
481 U. S.
837-839 (1987); Hart, The Power of Congress to Limit the
Jurisdiction of Federal Courts: An Exercise in Dialectic, 66
Harv.L.Rev. 1362, 1379-1383 (1953). We must therefore read the
Controlled Substances Act as preserving judicial review of a
temporary scheduling order in the course of a criminal prosecution
in order to save the Act's delegation of lawmaking power from
unconstitutionality.
Cf. Webster v. Doe, 486 U.
S. 592,
486 U. S.
603-604 (1988).
The second point that I wish to emphasize is my understanding of
the breadth of the Court's constitutional holding. I agree that the
separation of powers doctrine relates only to the allocation of
power
between the Branches, not the allocation of power
within a single Branch. But this conclusion by no means
suggests that the Constitution as a whole is indifferent to how
permissibly delegated powers are distributed within the Executive
Branch. In particular, the Due Process Clause limits the extent to
which prosecutorial and
Page 500 U. S. 171
other functions may be combined in a single actor.
See,
e.g., Morrissey v. Brewer, 408 U. S. 471,
408 U. S.
485-487 (1972). Petitioners raise no due process
challenge in this case, and I do not understand anything in today's
decision as detracting from the teachings of our due process
jurisprudence generally.