Delegation of authority to the Attorney General to issue temporary regulations does not violate the nondelegation doctrine because such regulations remain subject to judicial review.
Petitioners were convicted of manufacturing a drug that had been temporarily scheduled as a controlled substance. They challenged the constitutionality of the statute, arguing that it unconstitutionally delegated legislative power to the Attorney General and that the Attorney General improperly subdelegated that power to the Drug Enforcement Administration. The Court holds that Congress does not violate the nondelegation doctrine by legislating in broad terms if it provides an intelligible principle to guide the authorized actor. Because the statute required the Attorney General to act to avoid an imminent hazard to public safety and included specific procedural constraints, the delegation was constitutional. Furthermore, the Attorney General's subdelegation to the DEA was authorized by statute.
At page 165 Defining the scope of the nondelegation doctrine77 citing cases“congress may not constitutionally delegate its legislative power to another branch of government.”
- Maurice Felton Lawson v. State, No. 02-08-00116-CR (Tex. App.—Fort Worth Feb. 5, 2009).published (Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors.)
- Lawson v. State, 283 S.W.3d 438 (Tex. App.—Fort Worth 2009).published (Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors.)
- United States v. Hinen, 487 F. Supp. 2d 747 (W.D. Va. 2007).published (Congress may not constitutionally delegate its legislative power to another branch of Government.)
- Natl Infusion Ctr. v. Kennedy, No. 25-50661 (5th Cir. Aug. 26, 2026).published “Congress does not violate 8 the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors”
- United States v. Derby Clerfe, No. 24-2116 (3d Cir. Aug. 10, 2026).published Touby v. United States, for instance, upheld the Controlled Substances Act’s (“CSA”) delegation to the Attorney General to temporarily list a substance on Schedule I if he deemed it “necessary to avoid an imminent hazard to the public safe…
- United States v. Bernard Shelton, 179 F.4th 1020 (6th Cir. 2026).published“delegat[ing] its legislative power to another branch of Government”
- United States v. Pheasant, 157 F.4th 1119 (9th Cir. 2025).published Touby, 500 U.S. at 165-66. 2 Thus, the Supreme Court itself has said it hasn’t provided any definitive conclusion as to whether criminal delegations require greater congressional guidance, but rather that it has explicitly left this questi…
- Morales v. Rardin, No. 0:24-cv-03366 (D. Minn. July 8, 2025).(upholding constitutionality of Congress’s delegation of authority to the President to set maximum penalties for violations of the Uniform Code of Military Justice)
- Morales v. Rardin, No. 0:24-cv-03121 (D. Minn. July 8, 2025).(upholding constitutionality of Congress’s delegation of authority to the President to set maximum penalties for violations of the Uniform Code of Military Justice)
- United States v. Keller, 142 F.4th 645 (9th Cir. 2025).published“the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches”
Show 60 more citing cases
- United States v. Pheasant, 129 F.4th 576 (9th Cir. 2025).published “Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors”
- Novo Nordisk Inc. v. Becerra, No. 3:23-cv-20814, 2024 WL 3594413 (D.N.J. July 31, 2024).unpublishedPlaintiffs argue that the IRA violates the nondelegation doctrine because when Congress enacted the IRA, it failed to articulate an “intelligible principle to which” CMS “is directed to conform.” (Plfs.’ Moving Br. at 39 (quoting Touby v.…
- Consumers' Rsch. v. FCC, 109 F.4th 743 (5th Cir. 2024).published So there is no doubt that “the lawmaking function belongs to Congress,” Loving v. United States, 517 U.S. 748, 758 (1996), and that Congress “may not constitutionally delegate that power to another” constitutional actor, Touby v. United St…
- Alpine Sec. Corp. v. Nat'l Sec. Clearing, No. 2:23-cv-00782 (D. Utah Mar. 8, 2024).Alpine argues that Defendants’ exercise of authority violates the nondelegation doctrine whether or not Defendants are considered part of the government for purposes of its structural-constitutional claims. i) Interbranch delegation First,…
- Aposhian v. Whitaker, No. 2:19-cv-00037 (D. Utah Sept. 29, 2023).“The non- delegation doctrine provides ‘that Congress may not constitutionally delegate its legislative power to another branch of government.’” United States v. Brown, 348 F.3d 1200, 1216 (10th Cir. 2003) (quoting Touby v. United States,…
- Houston Police Officers' Union v. Houston Prof'l Fire Fighters' Ass'n, No. 21-0755 (Tex. Mar. 31, 2023).publishedComm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 600 (Tex. 2001) (“The separation of powers doctrine prohibits one branch of government from exercising a power inherently belonging to another branch.”). 37 Touby v. United States, 500 U.…
- United States v. Rhine, No. 2021-0687, 2023 WL 372044 (D.D.C. Jan. 24, 2023).published “its legislative power to another branch of Government”
- Cmty Fin Assoc Am. v. C.F.P.B., 51 F.4th 616 (5th Cir. 2022).published“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…”
- Gun Owners of Am., Inc. v. Merrick B. Garland, 19 F.4th 890 (6th Cir. 2021).published Id. at 165-66.
- United States v. Manuel Melgar-Diaz, 2 F.4th 1263 (9th Cir. 2021).published In Touby, for example, the Supreme Court rejected a non-delegation challenge to a statute that gave the Attorney General authority temporarily to designate a drug as a controlled substance, and through that authority “promulgate regulation…
- Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021).published (nondelegation not implicated “merely because [Congress] legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors)
- Earl v. Boeing Co., 515 F. Supp. 3d 590 (E.D. Tex. 2021).published“Congress may not constitutionally delegate its legislative power to another branch of Government”
- Chambless Enter. L L C v. Redfield, 508 F. Supp. 3d 101 (W.D. La. 2020).publishedTouby v. United States, 500 U.S. 160, 166 (1991); see also Indus.
- Jardaneh v. Barr, No. 8:18-cv-02415 (D. Md. July 20, 2020).“Congress may not constitutionally delegate its legislative power to another branch of Government”
- Big Time Vapes, Inc. v. FDA, 963 F.3d 436 (5th Cir. 2020).published“Th[at] 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, 371 (1989). “[T]he lawmaking function belongs to Congress,” Lo…
- Damien Guedes v. ATF, No. 19-5042 (D.C. Cir. Apr. 1, 2019).published The Court held that, in the criminal context, as in all contexts, the separation of powers “does not prevent Congress from seeking assistance * * * from its coordinate Branches” so long as Congress “lays down by legislative act an intellig…
- United States v. Micah Iverson Kelly, 874 F.3d 1037 (9th Cir. 2017).published “When adding a substance to a schedule, the [DEA] must follow specified procedures.” Touby, 500 U.S. at 162, 111 S.Ct. 1752 .
- Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).published(suggesting a heightened standard might apply in the criminal setting)
- United States v. Cotonuts, 633 F. App'x 501 (10th Cir. 2016).unpublished “does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches”
- United States v. Nichols, 775 F.3d 1225 (10th Cir. 2014).published“has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of Government”
- Time Warner Entm't advance/newhouse P'ship v. Town of Landis, N.C., 2014 NCBC 25 (N.C. Bus. Ct. 2014).publishedComm. v. Thornburg, 325 N.C. 463 , 468, 385 S.E.2d 451 , 454 (1989). {24} Despite these constitutional limitations, courts in North Carolina “acknowledge that our separation of powers clause does not prevent the General Assembly ‘from seek…
- United States v. Fuller, 627 F.3d 499 (2d Cir. 2010).published
- Laird v. DEA, No. 02-60715 (5th Cir. June 12, 2003).unpublished
- Nat'l Mar. Saf. Ass'n v. Occupational Saf. & Health Admin., 649 F.3d 743 (D.C. Cir. 2011).published
- United States v. Jones, No. 96-10113 (5th Cir. Feb. 10, 1998).published
- United States v. Jones, No. 96-10448 (5th Cir. Feb. 10, 1998).published
- United States v. Cespedes, 151 F.3d 1329 (11th Cir. 1998).published
- United States v. Henry, No. 12-1601 (1st Cir. Jan. 30, 1998).published
- United States v. Brian Leigh Farmer, 956 F.2d 1168 (9th Cir. 1992).unpublished
- Banks v. Georgia Power Co., 481 S.E.2d 200 (Ga. 1997).published
- United States v. Lafferty, 608 F. Supp. 2d 1131 (D.S.D. 2009).published
- United States v. Voice, 621 F. Supp. 2d 741 (D.S.D. 2009).published
- United States v. Keith Cooper, 750 F.3d 263 (3d Cir. 2014).published
- United States v. Richardson, 754 F.3d 1143 (9th Cir. 2014).published
- Aarp v. EEOC, No. 05-4594 (3d Cir. June 4, 2007).published
- Whether Physician-Assisted Suicide Serves a \Legitimate Med. Purpose\" Under DEA Regulations" (OLC 2001).published
- Guedes v. Bureau of Alcohol, Tobacco, Firearms, 920 F.3d 1 (D.C. Cir. 2019).published
- Gamble v. United States, 587 U.S. 678 (2019).published
- Demko v. United States, 44 Fed. Cl. 83 (Fed. Cl. 1999).published
- Hussein v. Attorney Gen., 273 F. App'x 147 (3d Cir. 2008).unpublished
- Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457 (2001).published
- United States v. Mark O. Henry, 136 F.3d 12 (1st Cir. 1998).published
- United States v. Anvari-Hamedani, 378 F. Supp. 2d 821 (N.D. Ohio 2005).published
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).published
- United States v. Brown, 334 F.3d 1197 (10th Cir. 2003).published
- United States v. Adnan Mirza, 454 F. App'x 249 (5th Cir. 2011).unpublished
- United States v. Chi Tong Kuok, 671 F.3d 931 (9th Cir. 2012).published
- South Dakota v. United States Dep't of the Interior, 69 F.3d 878 (8th Cir. 1995).published
- Thomas A. Demko & Penn Arms, Inc. v. United States, 216 F.3d 1049 (Fed. Cir. 2000).published
- United States v. Brown, 348 F.3d 1200 (10th Cir. 2003).published
- United States v. Senogles, 570 F. Supp. 2d 1134 (D. Minn. 2008).published
- Milk Train, Inc. v. Veneman, 167 F. Supp. 2d 20 (D.D.C. 2001).published
- United States v. Benevento, 633 F. Supp. 2d 1170 (D. Nev. 2009).published
- Tulare Cnty. v. Bush, 185 F. Supp. 2d 18 (D.D.C. 2001).published
- Utah Ass'n of Counties v. Bush, 316 F. Supp. 2d 1172 (D. Utah 2004).published
- Phil Kerpen v. Metro. Washington, 907 F.3d 152 (4th Cir. 2018).published
- Bhatti v. Fed. Hous. Fin. Agency, 332 F. Supp. 3d 1206 (D. Me. 2018).published
- Kovac v. Wray, 363 F. Supp. 3d 721 (N.D. Tex. 2019).published
- Robinson v. Salazar, 885 F. Supp. 2d 1002 (E.D. Cal. 2012).published
- Vill. of Hobart v. United States Dep't of the Interior, No. 1:23-cv-01511 (E.D. Wis. Dec. 2, 2025).
At page 163 Expedited temporary scheduling for public safety hazards21 citing cases“necessary to avoid an imminent hazard to the public safety.”
- Allstates Refractory Contractors v. Julie Su, 79 F.4th 755 (6th Cir. 2023).published (necessary to avoid an imminent hazard to the public safety)
- Chamber of Com. of the United States v. EPA, No. 24-1193 (D.C. Cir. Aug. 18, 2026).published(same for Controlled Substances Act’s authorization of the Attorney General to temporarily add a substance to a controlled drug schedule if doing so is “necessary to avoid an imminent hazard to the public safety)
- United States v. Derby Clerfe, No. 24-2116 (3d Cir. Aug. 10, 2026).published “necessary to avoid an imminent hazard to the public safety”
- Chambless Enter. L L C v. Redfield, 508 F. Supp. 3d 101 (W.D. La. 2020).publishedTouby v. United States, 500 U.S. 160, 166 (1991); see also Indus.
- Gundy v. United States, 588 U.S. 128 (2019).publishedIt might have required all pre-Act offenders to register, but then given the Attorney General the authority to make case-by-case exceptions for offenders who do not present an “ ‘imminent hazard to the public safety’ ” comparable to that p…
- United States v. Jason Alexander Phifer, 904 F.3d 947 (11th Cir. 2018).published Touby v. United States, 500 U.S. 160, 162 (1991); see 21 U.S.C. § 812 .
- United States v. Micah Iverson Kelly, 874 F.3d 1037 (9th Cir. 2017).published “When adding a substance to a schedule, the [DEA] must follow specified procedures.” Touby, 500 U.S. at 162, 111 S.Ct. 1752 .
- United States v. Cotonuts, 633 F. App'x 501 (10th Cir. 2016).unpublished While the Constitution forbids Congress from 7 “delegat[ing] its legislative power to another branch of Government,” it “does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches.” Touby v. Unite…
- United States v. Reece, 956 F. Supp. 2d 736 (W.D. La. 2013).published
- Laird v. DEA, No. 02-60715 (5th Cir. June 12, 2003).unpublished
Show 11 more citing cases
- Nat'l Mar. Saf. Ass'n v. Occupational Saf. & Health Admin., 649 F.3d 743 (D.C. Cir. 2011).published
- United States v. Barry Garfinkel, 29 F.3d 451 (8th Cir. 1994).published
- Healthscript, Inc. v. State, 770 N.E.2d 810 (Ind. 2002).published
- In re Nat'l Sec. Agency Telecomm. Records Litig., 633 F. Supp. 2d 949 (N.D. Cal. 2009).published
- Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457 (2001).published
- United States v. Amirnazmi, 645 F.3d 564 (3d Cir. 2011).published
- United States v. Mark O. Henry, 136 F.3d 12 (1st Cir. 1998).published
- United States v. Anvari-Hamedani, 378 F. Supp. 2d 821 (N.D. Ohio 2005).published
- In re Certified Question (Midwest Inst of Health V, No. 161492 (Mich. Oct. 2, 2020).published
- In re Border Infrastructure Envtl. Litig., 284 F. Supp. 3d 1092 (S.D. Cal. 2018).published
- United States v. Phifer, 909 F.3d 372 (11th Cir. 2018).published
At page 166 Constraining executive discretion in drug scheduling under statute15 citing cases“discretion to define criminal conduct”
- Allstates Refractory Contractors v. Julie Su, 79 F.4th 755 (6th Cir. 2023).published Co., 319 U.S. at 215– 16 (“public interest”); Yakus, 321 U.S. at 420-23 (“fair and equitable”); Touby, 500 U.S. at 163 (“necessary to avoid an imminent hazard to the public safety”); Whitman, 531 U.S. at 472-76 (“requisite to protect the p…
- United States v. Pheasant, 157 F.4th 1119 (9th Cir. 2025).published Touby, 500 U.S. at 165-66. 2 Thus, the Supreme Court itself has said it hasn’t provided any definitive conclusion as to whether criminal delegations require greater congressional guidance, but rather that it has explicitly left this questi…
- V.O.S. Selections, Inc. v. Trump, 2025 CIT 66 (Ct. Int'l Trade 2025).publishedTouby v. United States, 500 U.S. 160, 166 (1991); see also Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 , 559-60 (1976).
- United States v. Yi-Chi Shih, 73 F.4th 1077 (9th Cir. 2023).published“discretion to define criminal conduct”
- United States v. Manuel Melgar-Diaz, 2 F.4th 1263 (9th Cir. 2021).published In Touby, for example, the Supreme Court rejected a non-delegation challenge to a statute that gave the Attorney General authority temporarily to designate a drug as a controlled substance, and through that authority “promulgate regulation…
- Chambless Enter. L L C v. Redfield, 508 F. Supp. 3d 101 (W.D. La. 2020).publishedTouby v. United States, 500 U.S. 160, 166 (1991); see also Indus.
- Gundy v. United States, 588 U.S. 128 (2019).publishedIt might have required all pre-Act offenders to register, but then given the Attorney General the authority to make case-by-case exceptions for offenders who do not present an “ ‘imminent hazard to the public safety’ ” comparable to that p…
- United States v. Harder, 168 F. Supp. 3d 732 (E.D. Pa. 2016).publishedTouby, 500 U.S. at 166, 111 S.Ct. 1752 .
- United States v. Fuller, 627 F.3d 499 (2d Cir. 2010).published
- United States v. Henry, No. 12-1601 (1st Cir. Jan. 30, 1998).published
Show 4 more citing cases
- United States v. Dhafir, 461 F.3d 211 (2d Cir. 2006).published
- Erick Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722 (6th Cir. 2013).published
- United States v. Henry, No. 96-1775 (1st Cir. Feb. 5, 1998).published
- United States v. Amirnazmi, 645 F.3d 564 (3d Cir. 2011).published
At page 162 Analyzing authority to schedule controlled substances11 citing cases“violations involving schedule i substances carry the most severe penalties, as these substances are believed to pose the most serious threat to public safety.”
- United States v. Santiago-Mendez, 691 F.3d 1 (1st Cir. 2012).published “violations involving schedule i substances carry the most severe penalties, as these substances are believed to pose the most serious threat to public safety.”
- United States v. Benjamin Galecki, 89 F.4th 713 (9th Cir. 2023).published “authorizes the Attorney General to add or remove substances, or to move a substance from one schedule to another”
- Gun Owners of Am., Inc. v. Merrick B. Garland, 19 F.4th 890 (6th Cir. 2021).published Id. at 165-66.
- United States v. Jason Alexander Phifer, 904 F.3d 947 (11th Cir. 2018).published Touby v. United States, 500 U.S. 160, 162 (1991); see 21 U.S.C. § 812 .
- United States v. Micah Iverson Kelly, 874 F.3d 1037 (9th Cir. 2017).published “When adding a substance to a schedule, the [DEA] must follow specified procedures.” Touby, 500 U.S. at 162, 111 S.Ct. 1752 .
- Gonzales v. O Centro Espírita Beneficente União Do Vegetal, 546 U.S. 418 (2006).published
- United States v. Forrester, 616 F.3d 929 (9th Cir. 2010).published
- United States v. Fuller, 627 F.3d 499 (2d Cir. 2010).published
- United States v. Forrester, 592 F.3d 972 (9th Cir. 2010).published
- United States v. Reece, 956 F. Supp. 2d 736 (W.D. La. 2013).published
At page 167 Analyzing statutory restrictions on agency discretion6 citing casesholding that the “multiple specific restrictions on the Attorney General’s discretion . . . satisfy the constitutional requirements of the nondelegation doctrine
- Allstates Refractory Contractors v. Julie Su, 79 F.4th 755 (6th Cir. 2023).published Co., 319 U.S. at 215– 16 (“public interest”); Yakus, 321 U.S. at 420-23 (“fair and equitable”); Touby, 500 U.S. at 163 (“necessary to avoid an imminent hazard to the public safety”); Whitman, 531 U.S. at 472-76 (“requisite to protect the p…
- Bradford v. U.S. Dep't of Labor, 101 F.4th 707 (10th Cir. 2024).published(holding that the “multiple specific restrictions on the Attorney General’s discretion . . . satisfy the constitutional requirements of the nondelegation doctrine)
- United States v. Gibson, 55 F.4th 153 (2d Cir. 2022).published Indeed, "since 1970"--and before 2015-- 13 "'approximately 160 substances ha[d] been added, removed, or transferred from one 14 schedule to another.'" Id. (quoting Matter of Ferreira, 26 I. & N. Dec. 415, 418 (B.I.A. 15 2014)). 16 The upda…
- Gun Owners of Am., Inc. v. Merrick B. Garland, 19 F.4th 890 (6th Cir. 2021).published Id. at 165-66.
- United States v. Micah Iverson Kelly, 874 F.3d 1037 (9th Cir. 2017).published “When adding a substance to a schedule, the [DEA] must follow specified procedures.” Touby, 500 U.S. at 162, 111 S.Ct. 1752 .
- Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749 (5th Cir. 1999).published
At page 168 Analyzing judicial review of temporary scheduling orders7 citing cases“does not preclude an individual facing criminal charges from bringing a challenge to a temporary scheduling order as a defense to prosecution,”
- United States v. Micah Iverson Kelly, 874 F.3d 1037 (9th Cir. 2017).published “When adding a substance to a schedule, the [DEA] must follow specified procedures.” Touby, 500 U.S. at 162, 111 S.Ct. 1752 .
- United States v. Reece, 956 F. Supp. 2d 736 (W.D. La. 2013).published
- United States v. Dhafir, 461 F.3d 211 (2d Cir. 2006).published
- Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749 (5th Cir. 1999).published
- United States v. Sattar, 272 F. Supp. 2d 348 (S.D.N.Y. 2003).published
- United States v. Jackie Rae Springer Gregory M. Chollet, 354 F.3d 772 (8th Cir. 2004).published
At page 169 Permitting delegation of functions under the controlled substances act6 citing cases“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 ...”
- United States v. Hinen, 487 F. Supp. 2d 747 (W.D. Va. 2007).published See Touby v. United States, 500 U.S. 160, 165 , 111 S.Ct. 1752 , 114 L.Ed.2d 219 (1991) (“Congress may not constitutionally delegate its legislative power to another branch of Government.”).
- Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697 (9th Cir. 1996).published “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 sta…”
- Rodriguez v. DVA, 8 F.4th 1290 (Fed. Cir. 2021).publishedContrary to Mr. Rodriguez’s argument, however, the Constitution permits principal officers to delegate duties and functions to other officers and employees, see Touby v. United States, 500 U.S. 160, 169 (1991), and the Secretary’s delegati…
- United States v. Reece, 956 F. Supp. 2d 736 (W.D. La. 2013).published
- United States v. Barry Garfinkel, 29 F.3d 451 (8th Cir. 1994).published
- Whether Physician-Assisted Suicide Serves a \Legitimate Med. Purpose\" Under DEA Regulations" (OLC 2001).published
114 L. Ed. 2d at 227 Delegation of authority in federal case law2 citing cases
- United States v. Mills, 817 F. Supp. 1546 (N.D. Fla. 1993).published
- Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App. 1992).published
At page 164 Temporary drug scheduling authority and its delegation2 citing cases“all legislative powers herein granted shall be vested in a congress of the united states.”
- Gun Owners of Am., Inc. v. Merrick B. Garland, 992 F.3d 446 (6th Cir. 2021).publishedIn Touby v. United States, 500 U.S. 160, 164-69 (1991), the Court upheld a delegation of legislative authority to the Attorney General to schedule substances under the Controlled Substances Act—a determination that carried criminal implica…
Other citing cases
- Fraternal Order of Police-Metro. Police Dep't Labor Comm. v. Dist. of Columbia, No. 21-CV-0511 (D.C. Mar. 2, 2023).published
- Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., 33 F.4th 1348 (Fed. Cir. 2022).published
v.
United States.
[*161] Joel I. Klein argued the cause for petitioners. With him on the briefs were Richard G. Taranto and Michael E. Deutsch.
Jeffrey P. Minear argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Richard A. Friedman.
[*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[*163] provisions of the Administrative Procedure Act (APA), 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). Drug traffickers were able to take advantage of this time gap by designing drugs that were similar in pharmacological effect to scheduled substances but differed 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."
[*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[*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, 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 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, 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, 778-786 (1948); authorizing the Price Administrator to fix "fair and equitable" commodities prices, see Yakus v. United States, 321 U. S. 414, 426-427 (1944); and authorizing the Federal Communications Commission to regnlate broadcast licensing in the "public interest," see National Broadcasting Co. v. United States, 319 U. S. 190, 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[*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 more specific guidance is in fact required. Compare Fahey v. Mallonee, 332 U. S. 245, 249-250 (1947), cited in Mistretta, supra, at 373, n. 7, with Yakus, supra, at 423-427, and United States v. Grimaud, 220 U. S. 506, 518, 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.[*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[*168] Branches, see Mistretta, 488 U. S., at 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 Congress has been obeyed.'" Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 218 (1989), quoting Yakus, supra, at 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[*169] Congress has been obeyed.'" Skinner, supra, at 218, quoting Yakus, 321 U. S., at 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 General may delegate any of his functions under [the Controlled Substances Act] to any officer or employee of the Department of Justice." 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, 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[*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, 120-122 (1946). See generally McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496 (1991); Abbott Laboratories v. Gardner, 387 U. S. 136, 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, 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, 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, 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[*171] other functions may be combined in a single actor. See, e. g., Morrissey v. Brewer, 408 U. S. 471, 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.