United States v. Daniel Touby, United States of America v. Lyrissa Touby

HUTCHINSON, Circuit Judge,

dissenting.

In this case, the Court sustains a broad delegation of Congress’s core legislative power to define primary criminal conduct to the Executive’s chief law enforcement officer, the Attorney General, against a facial attack on the constitutionality of that delegation. Specifically, the statute in question, 21 U.S.C. § 811 (h) (1988), gives the Attorney General the power to prohibit the manufacture, use, or distribution of drugs he believes presént an imminent danger to the public safety on pain of severe criminal sanctions without the independent check of either a controlling scientific and medical evaluation by a regulatory agency with expertise in the properties and effects of drugs or judicial review of the Attorney General’s decision by the courts. I cannot reconcile that result with any viable version of the non-delegation doctrine, a doctrine that the Court concedes has continuing vitality, see Opinion of the Court, at 764, despite the dormancy of its application in recent times. See Mistretta v. United States, 488 U.S. 361 , 109 S.Ct. 647, 654 , 102 L.Ed.2d 714 (1989). 1 I therefore respectfully dissent.

I agree with the Court that the Toubys have mounted only a facial attack on the statute limited to improper delegation, despite their statement that the statute is also invalid as applied to them. They presented no evidence, and I find none elsewhere in the record, that “euphoria” is not a danger to the public safety or that the Attorney General acted arbitrarily or otherwise improperly in temporarily scheduling it. I also accept the Court’s statement of the statutory background, the nature of the problem, the facts of the case and its holding that we have jurisdiction to consider the constitutionality of this particular delegation of lawmaking power to the Attorney General. Except for its treatment of the criminal aspect of this delegation, I am likewise generally in accord with its listing of the factors for consideration in determining whether a particular delegation of legislative power is valid under Article I, § 1 of the Constitution. However, I believe the Court errs in holding that this delegation to the Attorney General is valid. In 21 U.S.C. § 811 (h), Congress tells the executive branch to subject drug users to severe criminal sanctions whenever the Attorney General decides a particular new drug poses an “imminent hazard to the public safety” without independent, a priori regulatory control or a posteriori judicial review. 2 In support of its holding, the Court cites various cases upholding delegations that run afoul of some of the factors material to an analysis of the validity of legislative delegation. However, in none of those cases, nor in any that my research has uncovered, has a court upheld a statute that gives broad delegation to define primary criminal conduct to the official chiefly responsible for criminal law enforcement without either independent expert control or judicial review.

*775 I note first that the broad standard Congress enacted to control the Attorney General’s exercise of the lawmaking power relates to the definition of criminal conduct by a law enforcement officer. Unlike the Court, I think the power to impose primary criminal sanctions is a factor to be considered when evaluating a statute under the non-delegation doctrine. The Court cites United States v. Frank, 864 F.2d 992 (3d Cir.1988), cert. denied, —U.S.-, 109 S.Ct. 2442 , 104 L.Ed.2d 998 (1989), for the proposition that the standard governing the delegation of the power to establish criminal penalties is no more stringent than that which governs any other delegation of lawmaking power. In my judgment, Frank is distinguishable. Moreover, I do not believe that the statement the Court cites from Frank is controlling on the relevance of primary criminal sanctions to valid delegation.

Frank involved a delegation of the power to limit objectively the range within which a sentence could be imposed on a person already adjudged guilty of criminal conduct within a narrower band than the broad punitive range set by the particular criminal statute involved. Our decision upholding the delegation in Frank was ultimately vindicated by the decision of the Supreme Court in Mistretta . A delegation of the power to limit the range of penalties that the government may impose upon criminal conduct defined by Congress is different than the power to define the conduct that must be shown to have occurred before any criminal penalty may be imposed. Courts have generally held that substantive criminal conduct must be precisely defined by statute. The sentencing power is different. Before the Sentencing Guidelines, the length of a sentence was left to the discretion of the sentencing court, provided only that it acted within the broad range set in the statute. See Mis-tretta, 109 S.Ct. at 650.

Aside from the fact that Frank is distinguishable, the construction the Court places on its statement that a majority of the Supreme Court has not shown any inclination to preclude more strictly a delegation of lawmaking power in the criminal field is contrary to the statement of the United States Supreme Court in Fahey v. Mallonee, 332 U.S. 245, 250 , 67 S.Ct. 1552, 1554 , 91 L.Ed. 2030 (1947). In Fahey , the Supreme Court, in upholding a delegation of the terms for which conservators could be appointed to oversee failed savings and loan associations, said that what may be allowed in connection with supervisory actions may not be allowed in the creation of new crimes, at least in uncharted fields. The field of dangerous drugs is, of course, not entirely uncharted. However, the cartographer has heretofore been the Secretary of Health and Human Services, perhaps with the Attorney General in the role of pilot. This statute gives the Attorney General both functions. In United States v. Robel, 389 U.S. 258, 275 , 88 S.Ct. 419, 430 , 19 L.Ed.2d 508 (1967), Justice Brennan, in a concurring opinion, expressly stated that “[t]he area of permissible indefiniteness [in delegation] narrows ... when the regulation invokes criminal sanctions.”

Because of the difference between the delegation of the power to define sanctions for criminal conduct and the power to define the conduct that will permit those sanctions, and these statements by the Supreme Court, I do not believe the statement made in Frank adequately supports the Court’s conclusion that there is no difference between the application of the non-delegation doctrine in the criminal field, as opposed to its application in the civil and regulatory 'fields. Indeed, as the Court recognizes, the only two cases that have held congressional delegation of broad legislative power constitutionally invalid involved the delegation of power to create laws that subjected the violator to criminal penalties. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 , 55 S.Ct. 837 , 79 L.Ed. 1570 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388 , 55 S.Ct. 241 , 79 L.Ed. 446 (1935).

The Court correctly states that the Constitution does not prohibit Congress from delegating its authority to coordinate branches if it sets forth an “intelligible principle” limiting the bounds of the delegated authority. See J.W. Hampton, Jr. *776 & Co. v. United States, 276 U.S. 394, 409 , 48 S.Ct. 348, 352 , 72 L.Ed. 624 (1928). I agree with the Court that a delegation to prohibit the use of dangerous drugs for the purpose of avoiding “an imminent hazard to the public safety” is in and of itself an intelligible principle under the teachings of the Supreme Court. Cf. National Broadcasting Co. v. United States, 319 U.S. 190, 225-26 , 63 S.Ct. 997, 1013-14 , 87 L.Ed. 1344 (1943) (upholding “public convenience, interest and necessity” as a valid basis for FCC regulations); Lichter v. United States, 334 U.S. 742, 783-87 , 68 S.Ct. 1294, 1315-18 , 92 L.Ed. 1694 (1948) (upholding “excessive profits” standard as the basis for administrative renegotiation of wartime supply contracts).

But what are we to say of the delegation to a law enforcement officer of the power to define primary criminal conduct in accordance with a broad “intelligible principle” if Congress prohibits the judiciary from determining whether the law enforcement official has acted within the limits of that principle? Congress had said that “[a]n order issued under [the temporary scheduling power] is not subject to judicial review.” 21 U.S.C. § 811 (h)(6). I am, of course, mindful of the maxim of statutory interpretation that a statute should be construed as constitutional if at all possible, see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-48 , 56 S.Ct. 466, 482-84 , 80 L.Ed. 688 (1936) (Brandéis, J., concurring), and I would so construe this statute if its language, legislative history and existing case law permitted me to do so. 3 Nevertheless, I- believe that the language of § 811(h)(6) shows that Congress intended to preclude the judiciary from substantively reviewing the Attorney General’s exercise of the broad discretion Congress gave him.

The language of § 811(h)(6) itself is unequivocal. It says that the Attorney General’s action is “not subject to judicial review.” I do not think that the strong presumption in favor of judicial review can prevail against this express preclusion. At the very least, § 811(h)(6) precludes review under the Administrative Procedure Act. Even if the language of § 811(h)(6) leaves open the question of whether an individual indicted for the manufacture, use or distribution of a substance that the Attorney General has temporarily scheduled can defend on the ground that the Attorney General acted beyond his delegated power, the history of the statute indicates that Congress had no intention to permit such a defense. The Court seems to recognize this absolute prohibition on judicial review, other than to review for due process, when it states: “Judicial review is the usual vehicle by which the executive action is tested to insure that ‘the will of Congress has been obeyed.’ ” See Opinion of the Court at 768 (citing Skinner v. Mid-America Pipeline Co., 490 U.S. 212 , 109 S.Ct. 1726, 1731 , 104 L.Ed.2d 250 (1989) (quoting Mis-tretta, 109 S.Ct. at 658)).

Recognizing the problem presented by the statute’s preclusion of judicial review, the Court suggests that the implication of this prohibition on the facial validity of the statute can be avoided, and it cites some of the many cases in which some limitation on judicial review of administrative action has been upheld by the Supreme Court. None of these cases involves a delegation of the power to define primary criminal conduct, and I do not think that any of them stands for the proposition that judicial review of whether the delegee has acted within the substantive confines of the delegated power may be precluded.

Block v. Community Nutrition Inst., 467 U.S. 340 , 104 S.Ct. 2450 , 81 L.Ed.2d 270 (1984), is, in my judgment, not apposite. In Block , the Supreme Court held that consumers may not obtain judicial review of milk marketing orders issued by the Secretary of Agriculture. Considering the histo *777 ry of milk marketing, I read that case as simply holding that Congress did not intend to give consumers standing to review milk marketing orders. It is plain from the decision, the statute and the regulations themselves that judicial review of milk marketing orders issued by the Secretary of Agriculture was available to processors of dairy products. The question before the Court was not whether Congress had precluded judicial review, but whether it had afforded consumers affected by such orders standing to attack the Secretary’s orders as beyond the delegated power.

In Briscoe v. Bell, 432 U.S. 404 , 97 S.Ct. 2428 , 53 L.Ed.2d 439 (1977), a statute came closer to prohibiting judicial review of whether the delegee had acted within the limits of his delegated power. In that case, the Supreme Court enforced a provision in the Voting Rights Act barring “judicial review in any court” of the Attorney General’s determination that preconditions for the application of the Act to particular jurisdictions had been met. Briscoe , however, was not a criminal case; even so, the Court noted that review would be available under an exemption provision contained in the Act. See id. at 411 , 97 S.Ct. at 2432 .

Johnson v. Robison, 415 U.S. 361 , 94 S.Ct. 1160 , 39 L.Ed.2d 389 (1974), involving the preclusion of judicial review in non-constitutional attacks on the Veterans Administration’s provision of benefits, is an unremarkable case. Delegation of the power to decide issues concerning veterans’ benefits has been wholly entrusted to persons within the executive branch since the First Congress. See 1 K. Davis, Administrative Law Treatise 158 (2d ed. 1978).

Yakus v. United States, 321 U.S. 414 , 64 S.Ct. 660 , 88 L.Ed. 834 (1944), did involve criminal sanctions for violating price controls promulgated by the Office of Price Administration under the wartime Emergency Price Control Act. There, however, review, while strictly limited as to time, was available through the wartime Emergency Court of Appeals. No emergency court is available to review the scheduling of newly created designer drugs.

United States v. Caudle, 828 F.2d 1111 (5th Cir.1987), did not state the constitutional basis on which it upheld the dismissal of an indictment charging an individual with distribution of a temporarily scheduled drug because the Attorney General had not issued the order in accordance with the time limits provided in § 811(h), and the court there did not discuss limitations on the preclusion of judicial review in § 811(h)(6). Caudle involved the failure to follow the notice procedure that the statute requires, a procedure that certainly has due process implications. The court did not reach the question of whether the drug presented an “imminent hazard to the public safety.”

The Court, citing Estep v. United States, 327 U.S. 114 , 66 S.Ct. 423 , 90 L.Ed. 567 (1946), suggests that § 811(h)(6) does not preclude all review of the temporary scheduling power. Estep is distinguishable. The statutory language considered in Estep did not preclude judicial review, but simply made the action of the independent civilian administrative authorities “final.” As Professor Jaffe points out, courts have almost uniformly refused to interpret language providing that the decisions of administrative authorities shall be “final” as precluding judicial review. While such language may affect the scope of review, it does not normally preclude it. See L. Jaffe, Judicial Control of Administrative Action 356 (1965). Thus, in Estep , the Court held that a draftee who faced criminal prosecution for refusing to submit to induction could raise the defense that the Draft Board’s actions were lawless and outside its jurisdiction, despite a statutory provision rendering decisions of administrative authorities “final.”

The precise basis for the decision in Es-tep ■ is unclear, but Professor Jaffe suggests that it was decided upon statutory, rather than constitutional, grounds, see id. at 392, though perhaps with a flavor of due process. The Court seems to recognize that Estep is not a delegation case. Its reference to Estep follows its statement that: “As we have already suggested, see supra note 2, this does not necessarily preclude review of .the application of the *778 temporary scheduling power in an individual case.” Opinion of the Court at 768. Footnote 2 of the Court’s opinion deals with due process challenges, not challenges to delegation.

Of course, I agree with the Court that Congress has not deprived the federal judiciary of jurisdiction to test the constitutionality of this statute. See 28 U.S.C. § 1331 . But, I believe that § 811(h)’s legislative history supports the view that Congress did not intend to permit judicial review of the substantive basis for the Attorney General’s temporary scheduling. Considering the breadth of the delegation, such review, even for an arbitrary and capricious failure to act within the broad limiting standard, would be likely to interfere with Congress’s declared intention to deal promptly with what it saw as an emergency situation. See S.Rep. No. 98-225, 98th Cong., 2d Sess., 262, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3444.

The Court states that § 811(h) does not give the Attorney General power to define primary criminal conduct because Congress, not the Attorney General, defined the crime in § 812(b) by setting forth three criteria independent of § 811(h) that a Schedule I drug must meet. The § 812(b) criteria seem to me to be, at most, a direction to the Attorney General, the official charged with adding drugs to Schedule I pursuant to the power given him by § 811(h). I consider officials acting under § 811(h) secondary actors. The primary actor is the defendant, the person charged with manufacture, use or distribution of the drug. The crime for which a defendant is prosecuted is not, however, the manufacture, use or distribution of a drug that has the three characteristics Congress set forth in § 812(b). Rather, it is the manufacture, use or distribution of a drug the Attorney General has scheduled under § 811(h). If Congress had directly defined the crime in terms of the three § 812(b) criteria, each defendant charged with possession of a drug the Attorney General had scheduled would, it seems to me, be able to attack the sufficiency of - the evidence as to each of the three criteria Congress sets forth. I believe Congress did not intend to require the government to prove beyond a reasonable doubt the presence of these three factors in each case. If there were such a requirement, there would be little point in granting the Attorney General the power to schedule particular drugs.

As the Court recognizes, this is not to say that we could not review the Attorney General’s actions under the Due Process Clause. However, the question before us is not due process but the intent of Congress to preclude review of the Attorney General’s actions under the non-delegation doctrine. Considering the statutory prohibition against judicial review, the nature of the power delegated, the breadth of the delegation, the person to whom the delegation is made and the imprecision of the remedy afforded persons affected by a decision if the regulatory body with expertise and experience in the field concludes that the Attorney General is wrong in scheduling a particular drug, I believe that § 811(h) is facially invalid because it places no independent, a priori or a posteriori check on the Attorney General’s power to define a crime. The doctrine of separation of powers that underlies our constitutional system of government seems to me to require such a check.

The prohibition against overbroad and unchecked delegation has its roots in the philosophical assumptions that caused the framérs of our system of government to make a tri-partite separation of the federal government’s sovereign power among the legislature, the executive and the judiciary. This separation does not promote the efficient functioning of government. It is often inconvenient, but an examination of the historical background in England and the colonies indicates to me that the framers thought that such a separation was an important safeguard of individual liberties. 4 According to Blackstone:

*779 In all tyrannical governments, the supreme magistracy, or the right both of making and enforcing laws is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no liberty.

1 Blackstone, Commentaries on the Laws of England 146 (7th ed. 1775), quoted in 1 K. Davis, supra at 777, at 68. The doctrine, rooted in separation of powers, that prohibits Congress from overbroad delegations of its legislative power resides in the original Constitution as ratified by the states. Due process has its basis in the text of the Fifth Amendment. Both are part of constitutional law.

If due process is the only basis upon which individuals can be protected from arbitrary and capricious governmental actions, there would be no point in extended discussion of the prohibition against the delegation of legislative powers. That doctrine would have no part in judging an individual case. The protection of individual rights, apart from due process, would be left to the self-interest of each of the three branches in defending its own turf against intrusion by the other two.

However, if the prohibition against delegation has any vitality, it has it apart from the Bill of Rights and the Due Process Clause that Bill includes. It is therefore no answer to a question of improper delegation to suggest that an individual affected by the scheduling of a particular drug under Schedule I as an imminent hazard to the public safety can challenge the application of the criminal prohibition to him on due process grounds. Nor is it an answer that the individual could perhaps even attack the scheduling itself as being beyond the substantive bounds of the “intelligible principle” that limits the delegated legislative power; or, alternately, that if the Attorney General’s order is “vacated” the individual could have his indictment dismissed or his conviction expunged by habeas or otherwise a year or eighteen months later when the Attorney General or an independent expert authority determines that the drug on which his conviction ■was based was not dangerous enough to warrant its scheduling.

If this delegation is constitutional, I believe any individual protection provided by the constitutional prohibition against a general delegation of legislative power is a relic of the past. It may be that the evolution of due process as a direct guarantor of individual liberties has made the indirect assurance of the delegation doctrine and the separation of powers obsolete or unnecessary. I am, however,, unwilling to consign it to the museum until the Supreme Court so decides. This Court’s opinion finds the non-delegation doctrine moribund. It leaves it dead. Since this delegation is insulated from judicial review on the face of the statute, its conflict with the doctrine of the separation of powers must be decided independently of the individual’s right to due process.

Other courts that have considered the question of Congress’s delegation of the power to temporarily schedule on an emergency basis have expressed concern over the constitutional implications of that delegation. See, e.g., United States v. Spain, 825 F.2d 1426, 1429 (10th Cir.1987) (“The Congressional delegation to the Attorney General is not without doubt as to adequacy of standards in 811(h)_”). I believe that concern is well-founded. Considering the nature of the power delegated, the breadth of the delegation, the absence of substantive checks upon the Attorney General’s law enforcement power and the preclusion of judicial review, I would hold that 21 U.S.C. § 811 (h) is an improper delegation of legislative power violating the principle of separation of powers embodied in part in Article I, § 1 of the original text of our Constitution. That principle is designed to protect individuals against the arbitrary exercise of sovereign power by dividing it among the three branches of government that the draftsmen of the Constitution created, so that each one may check the excesses of the others, to the benefit of the individuals whose rights and tranquility the Constitution is meant to secure, not only in their daily intercourse with each other but also in their interactions with the officials to whom they have *780 entrusted the power to govern them. For these reasons, I would reverse the Toubys’ convictions.

. Because of my view that 21 U.S.C. § 811 (h) is an unconstitutional delegation of legislative power to the Attorney General, I do not reach or consider the issues of sub-delegation to the Drug Enforcement Agency Administrator, Lyrissa Touby's attack on the sufficiency of the evidence, or Daniel Touby’s pro se arguments.

. The Court reserves the question of review under the text of the Fifth Amendment’s Due Process Clause. See Opinion of the Court, at 764 n. 2. For the reasons set forth, infra typescript at 777-78, I do not think that this satisfactorily deals with the delegation problem.

. I am also mindful of the gravity of the drug problem in this nation and of the technical difficulty Congress faces in enacting statutes to control it in the face of illicit drug dealers’ entrepreneurial and technical abilities to compound chemical escapes from reality with ever-changing formulae. Because of this, a quick and flexible law enforcement response is not only desirable, but essential. However, it is, I believe, also essential that the power of the law enforcer to define criminal conduct be subject to independent control.

. For an extended discussion of the historical background and the relation between the original text of the Constitution and the Bill of Rights, see Gibbons, Factions, 20 Seton Hall L.Rev. 344 (1990).