Respondents Brief — Touby v. United States (No. 90-6282)

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

- pad,

ang

FOR ARGUMENE ee

No. 90-6282

In the Supreme Court of the Unit

OCTOBER TERM, 1990

DANIEL TOUBY AND LYRISSA TOUBY, PETITIONERS

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

JEFFREY P. MINEAR

199]

HE CLERK

Assistant to the Solicitor General

RICHARD A. FRIEDMAN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

® Whiimie Wy

QUESTIONS PRESENTED

1. Whether Section 201(h) of the Controlled Sub-

stances Act unconstitutionally delegates to the Attorney

General the authority to list a drug temporarily as a

schedule I controlled substance.

2. Whether the Attorney General lawfully delegated

his authority under Section 201(h) to the Administrator

of the Drug Enforcement Administration.

(I)

TABLE OF CONTENTS

Opinions below _........................ ipceieiesiabantisdishes iain stabi

a ssustmndeetueibsonoowatnesees

Statute and regulation involved —.........0.00000000...... a Oe

a ssevntevenntumsounecs

A. The Controlled Substances Act 00000000.

B. The temporary listing of Euphoria as a schedule

I controlled substance .......0000000000000.. rane trier

C. The facts and proceedings in this case ..............

Argument:

I. Section 201(h) does not violate the Constitu-,

tion’s requirement that “all legislative powers”

shall be vested in Congress ......0000000- 0000000.

A. Section 201(h) satisfies established delega-

EE CEL,

B. The Constitution does not prohibit Congress

from authorizing the Attorney General to

exercise the authority conferred by Section

a scsapnerenstihoctvecooses

C. Congress has provided constitutionally ade-

quate judicial oversight of Section 201 (h)

scheduling decisions ...... + EN a

Il. The Attorney General lawfully subdelegated his

Section 201(h) authority to the Administrator

of the Drug Enforcement Administration ._.

Conclusion ......... eeiitelbibenubeiascenssbonsoce SA

Appendix A ................ Rn iiiilinhsiendeprentncuketeasbobacsonccsceoseeee

Ee isla hiemconestiioe mama

TABLE OF AUTHORITIES

Cases:

Adamo Wrecking Co. v. United States, 434 US.

Teen ecououus eka

(IIT)

McKinley v. United States, 249 U.S. 397 (1919).. 23

- v

Cases—Continued : Page

Cases—Continued : Page mas

. McNary V. Haitian Refugee Center, Inc., No. 89-

A.L.A. Schechter Poultry Corp. v. United States, Os is ks SN 2h ad ho 35

295 U.S. 495 (1935) eo eeeonecoeenseee on ennnennnes 18 Mistretta vy. United States, 488 U.S. 361 (1989).. 11, 15,

American Power & Light Co. v. SEC, 329 U.S. 90 17, 18, 19, 22, 25, 26

CRO) aii ccna ssecnesitsnrcconenscensenepesnnasemennnsstononenenn 18, 30 Monongahela Bridge Co. v. United States, 216

Avent v. United States, 266 U.S. 127 (1924) japan 23 2 ee eS eee 23, 24, 35

Bowen V. stenigan Academy of Family Physicians, National Broadcasting Co. v. United States, 319

476 U.S. 667 (1986) - ...... essvsssanssssenserenseennseeeneeee 86 Ci Te Scien 12, 14, 18, 30

Boyce Motor Lines, Inc. v. United States, 342 U.S. Panama Refining Co. Vv. Ryan, 293 U.S. 388

CD ieecrnenseipipmsesccvsvcznsninsnasantscnninenncsiontenene 35 A ae IEE 18

Califano v. Sanders, 430 U.S. 99 (1977) ....... 35 Reckitt & Colman, Ltd. v. DEA, 788 F.2d 22

Cargo of the Brig Aurora V. United States, 11 U.S. I i Oe ee re 32

(7 Cranch) 382 (1813)... Rostker v. Goldberg, 453 U.S. 57 (1981) ............ 19

Carter Vv. United States, 333 F.2d 354 (10th Cir. Skinner vy. Mid-America Pipeline Co., 490 U.S.

ICM) nee aanneencnennecneeeecnettnectnnertncttnceenets -- 81 2 RR ORI 19, 22, 23, 34

Cincinnati, W. & Z. R.R. v. Commissioners of Clin- Union Bridge Co. v. United States, 204 U.S. 364

ton County, 1 Ohio St. 77 (1852) ............-..0....... 24 OU id as ed Fie en enna 23, 24, 35

Clark v. Gabriel, 393 U.S. 256 (1968) .................... 37, 38 United States vy. Alerander, 673 F.2d 287 (9th

Cudahy Packing Co. Vv. Holland, 315 U.S. 357 Cir.), cert. denied, 459 U.S. 876 (1982)... 31

(1942) ...........-.-.--. covsssseenncenneennnsssseeeeenncnnnanetiteeteeeee 41 United States vy. Barron, 594 F.2d 1345 (10th

Dunlop Vv. Bachowski, 421 U.S. 560 (1975) ........... 35 Cir.), cert. denied, 441 U.S. 951 (1979) 31

Estep v. United States, 327 U.S. 114 (1946) _......... 35, 36 United States v. Berrigan, 482 F.2d 171 (3d Cir.

Ewing v. Mytinger & Casselberry, Inc., 389 U.S. aS SE ES pi 31

RG CIID nssstenressesesscersempscensonnnsennivoennctones 16, 36-37, 38 United States v. Chatman, 538 F.2d 567 (4th Cir.

Fahey Vv. Mallonee, 332 U.S. 245 (1947) ................. 22, 29 STEARNS E ee 31

FCC v. Schreiber, 381 U.S. 279 (1965) .................. 29 United States v. Emerson, 846 F.2d 541 (9th Cir.

Field v. Clark, 148 U.S. 649 (1892) ..........0--....-... 24 0 ENG rea net ee ae 11

Fleming V. Mohawk Wrecking & Lumber Co., 331 United States v. Giordano, 416 U.S. 505 (1974)... 41, 42

Fe 41, 42 United States v. Gordon, 580 F.2d 827 (5th Cir.),

FPC v. Hope Natural Gas Co., 320 U.S. 591 cert. denied, 439 U.S. 1051 (1978)... 31

(1944) -nneenennnneeeneseeeeceececeseeeeeeeeeetee coseccnceeeceeenee 18 United States v. Grimaud, 220 U.S. 506 (1911) .18, 23, 24

Grinspoon V. DEA, 828 F.2d 881 (1st Cir. 1987) .... 6, 32 United States v. Koopmans, 757 F.2d 901 (7th

Johnson V. Robison, 415 U.S. 361 (1974) —.............. 35 = eee aie 31

J.W. Hampton, Jr., & Co. v. United States, 276 United States v. Park, 521 F.2d 1381 (9th Cir.

oe 11, 17, 18, 22, 24 a CE EO oe Sh 81

Kollock, In re, 165 U.S. 526 (1897) -.....-------------- 23, 24 United States v. Pastor, 557 F.2d 930 (2d Cir.

Larson V. Domestic & Foreign Commerce Corp., I Es i ei ie tae a 31

337 U.S. 682 (1949)... enncoe-seeeeessseeeeeneneneeecnee 34 United States v. Roya, 574 F.2d 386 (7th Cir.),

Lichter v. United States, 334 U.S. 742 (1948)... 12, 14, 18 cert. denied, 439 U.S. 857 (1978) ..................... 31

McGee V. United States, 402 U.S. 479 (1971)........ 33 United States vy. Salerno, 481 U.S. 739 (1987)... 19

United States v. Spain, 825 F.2d 1426 (10th Cir.

Cases—Continued : Page

United States v. Widdowson, 916 F.2d 587 (10th

Cir. 1990) ............ a Ea a aes 11, 13

Witmer v. United States, 348 U.S. 375 (1955)... 37

Yakus v. United States, 321 U.S. 414 (1944)....... 18, 22

Constitution, statutes and regulations:

U.S. Const. :

Art. I:

OT us a a eeapiedemaminaiininemmennaiat 17

§8, Cl. 18 (Necessary and Proper

III... -setpesenndteeilenenesaepainndsneiinasestsntins 28

Art. II

ce as aeaideianenaienesiiopaenamnasiannitii 26

i eas ceeccatbianiielanaaanl 26

Amend. V (Due Process Clause) ................-...--. 29, 37

ain 29

Act of Sept. 6, 1966, ch. 31, § 4(c), 80 Stat. 612... 7, 13,

40, 41, 42

Administrative Procedure Act, 5 U.S.C. 551 et

seq.:

pn SR ceceemeenneenenntaanentas 3

i senenenmmndenniibsmeseiepseanbnans 3

EEE ERSTE SPAR b SRS ev Owen cnet T ere Sw 3

I a sg naenneennenniente 34

i on iceassenennesiauntionh 37

a linbnnnaieneaeienliin 35

Clean Air Act, 42 U.S.C. 7401 et seq.:

§ 307(b) (1), 42 U.S.C. 7607 (b) (1) .........-........ 35

§ 307 (b) (2), 42 U.S.C. 7607 (b) (2) ................ 35, 36

Comprehensive Crime Control Act of 1984, § 1203

(c), Pub. L. No. 98-473, 98 Stat. 2152 ............... ; 5

Comprehensive Drug Abuse Prevention and Con-

trol Act of 1970, Pub. L. No. 91-518, 84 Stat.

IT acerca nn taanhesiaensennitentignsidinenengsennusesmaetnantnen 2

Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980, 42 U.S.C. 9613

EID <a. icsnscheciesararjannniatacainsesaienbiannesanabemnndanniatenesbaebedaigeniaes 37

Controlled Substances Act, as amended, 21 U.S.C.

801 et seq.:

i A I OO a cicnasaeinneninnceinetinsen 2

§§ 101-709, 21 U.S.C. 801-904 20... eee eeee es 40

VII

Statutes and regulations—Continued : Page

§ 102(14), 21 U.S.C. 802(14) oo 8

§ 201 (a), 21 U.S.C. 811(a) 0. 3, 4, 6, 10, 12, 33, 39

eg Ge We cnc scecscceseceneececncocoeeces 28, 36

BE Gag BR TITRE, BER GOD macs cccccccececenecccsecceces 3,4

§ 201 (c) (4), 21 U.S.C. 811 (e) (4) 5

§ 201 (c) (4)-(6), 21 U.S.C. 811 (c) (4)-(6) ...... 20

§ 201 (c) (5), 21 U.S.C. 811 (c) (5) 5

§ 201 (c) (6), 21 U.S.C. 811 (c) (6) 5

§ 201 (h), 21 U.S.C. 811 (h) WW... passim, la

§ 201 (h) (1), 21 U.S.C. 811 (h) (1) 6, 13, 20, 21

§ 201(h) (1) (A), 21 U.S.C. 811(h) (1) (A)... 6

§ 201 (h) (1) (B), 21 U.S.C. 811(h) (1) (B).... 6

§ 201 (h) (2), 21 U.S.C. 811 (h(2) oo. 6, 32

§ 201 (h) (3), 21 U.S.C. 811 (h) (3) _...... 5, 8, 9, 20, 28

§ 201 (h) (4), 21 U.S.C, 811 (h) (4) oe. 6, 9

§ 201 (h) (5), 21 U.S.C. 811 (h) (5) oo. 6

§ 201 (h) (6), 21 U.S.C. 811 (h) (6) .......6, 7, 18, 15, 32,

33, 34, 35, 36

ee MID orciscesttitiicnacecconnconinons nua - 3

§ 202(b), 21 U.S.C. 812(b) nnn nen 4,19, 21

§ 202(b) (1), 21 U.S.C. 812(b) (1) _4, 5, 6, 8-9, 20, 21

§ 202(b) (1) (B), 21 U.S.C. 812(b) (1) (B).... 21

§ 202(b) (2) (B), 21 U.S.C. 812(b) (2) (B).... 21

§ 202 (b) (3) (B), 21 U.S.C. 812(b) (3) (B).... 21

§ 202(b) (4) (B), 21 U.S.C. 812(b) (4) (B).... 21

§ 202 (b) (5) (B), 21 U.S.C. 812(b) (5) (B).... 21

§ 202(h), 21 U.S.C. 812 (In) occ eceececeeeeeee 5

§§ 301-310, 21 U.S.C. 821-830 eee eeee 3,4

§ 401 (a), 21 U.S.C. 841 (a) oo ceceeeceeceeeeeeeees 3, 10

§ 406, 21 U.S.C. 846 o.oo. ccccoecocececcccenececececeneceees 10

§ 501(a), 21 U.S.C. 871 (a) 7, 14, 16, 40

§ 507, 21 U.S.C. 877 00... 4, 7, 15, 32, 34, 35, 36

Controlled Substances Penalties Amendments Act

of 1984, Pub. L. No 98-473, Tit. II, ch. 5, 98

Stat. 2068 ........ he RPS Ra Eo Pee orn REE Se 5

Fair Labor Standards Act of 1938, ch. 676, § 4(b),

RRR a root then oe ae 41

Omnibus Crime Control and Safe Streets Act of

1968, Tit. III, 18 U.S.C. 2510 et seq. 0. 41

§ 802, 18 U.S.C. 2516 (1970) 20 e eee 41, 42

VIII

Statutes and regulations—-Continued: Page

Rivers and Harbors Appropriation Act of 1899,

Te CO) 8. Oya 24

LE ee ee ae ee en 43

I ls 43

eh laseanens 43

i, ESE PS ea a RE 22

fo Ee rae Oe scghidieidmemiains 22

ESSIEN oD eT I ore 22

I a amegemenien 32

I 32

SEERA EE ee oS TE re ee 43

EE Ee 43

IRA ANE re Dee ee oe ee Me Rep 43

ER RE ee era aE 43

SLE Be eae Seva A ore SCM 43

I 43

ER SESE Ra se a RC CRE REVO 43

I 43

I 22

RE EEE EERE Se ae eo a 22

RE RE SRT SO RRA Ore eT es Hee ae 26

pe DD reece eececsccccssceccccecccencccee 33

A eet er ae ce a oe 22

ETA Me SE a 23

in Ee a le Deg RU ae ee 23

gf | eee PRON Se aar ED 43

ERLISTE fe EST IR NNT ene Oe CCE 43

A ns I ns iuuesenuns 31

a SEER aR eo Aas SUR Seep 31, 32

REECE Se OPE anne nO aes Pee oe Looe 31

pe | a NS | | aa 43

ED I ee ae Sm ee 23

ET aa a RE a RT A See ee ST 23

EE EAE ee ee Ae One, ne NOON eee 21

EES RE ee A See Ae eae ee 26

RUE EERIE OE Segoe bee cou oser ir ee 33

Se es i 33

eee nee cae 7, 13, 16, 40

StI Se SS RO ON IED OR: OLE te 29

be oe: | | sits 34

Statutes and regulations—Continued: Page

4g REEDS ie Pee ea eee 26

I 23

TE eel, eerie 26

A SET Ear Cs. Saree 23

EL: a a 43

I 43

a 23

ee 23

SS EOE mn aeae 23

38 U.S.C. 5025 (b) (3) (C) ..0...oo. ecco ceoee------------ se. 43

OP le PI ID aciceecccccccacesececeemmesecieee ose 43

ee 43

i NOE SET Rae cere 43

Oe 43

41 U.S.C. 423 (d) (7) (B) ........0... 43

A a 23

Oe ID cries ecedincccee secenseecneesseceensecee 23

EEE AES Seer ne ese 23

42 U.S.C. 8374(e) Siotintamiaddbenaniag ans omit oo 43

rer 23

RIESE RE NEE at tel ca SS meer 43

ee I 43

er 43

| SAE Ee eee eee sega ED a 23

a 23

| ee 23

ES | ae 43

Cf eee 23

A a 23

21 C.F.R.:

Section 1308.02 (c) ..... BRE te IES FER 8

ey OD ss 8

33 C.7.B. O260Cs) (1068) ..................... 7

SR eee 2, 39, 40, 3a

Miscellaneous:

Administrative Procedure in Government Agen-

cies, S. Doe. No. 8, 77th Cong., 1st Sess.

LESSENS See oe HE Oa eC TT 35

Miscellaneous—Continued : Page

Cramton, Nonstatutory Review of Federal Ad-

ministrative Action: The Need For Statutory

Reform of Sovereign Immunity, Subject Mat-

ter Jurisdiction, and Parties Defendant, 68

ee S| Ue eee 34

Sr a i I I 7

52 Fed. Reg. (1987) :

REEL a nana ae Ree ene Te 7,40

aes Se Ca ee ee ee a 8, 28

ELS DIE Re T oe ae re ST 8,9

EET EE ea Se a eee 9

RE ree mee ee 9

53 Fed. Reg. (1988) :

BREE SETS cee ae we 9

REET SRS a dee ee aL a Oe ee dueemsion 9

54 Fed. Reg. 14,799 (1989) ...............ccccccccececccceccooeeee 10

H.R. Rep. No. 835, 98th Cong., 2d Sess. (1984)... 20, 33

S. 1762, 98th Cong., Ist Sess. (1983) ............ 20

S. Rep. No. 225, 98th Cong., 1st Sess. (1983) ..5, 13, 20, 31

U.S. Dep’t of Justice, Attorney General’s Manual

on the Administrative Procedure Act (1947).... 35

Ju the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-6282

DANIEL TOUBY AND LYRISSA TOUBY, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (J.A. 27-66) is re-

ported at $09 F.2d 759. The opinion of the district court

(J.A. 2-26) is reported at 710 F. Supp. 551.

JURISDICTION

The judgment of the court of appeals was entered on

July 27, 1990. A petition for rehearing was denied on

August 21, 1990. The petition for a writ of certiorari

was filed on November 19, 1990, and was granted on

January 14, 1991. The jurisdiction of this Court rests

on 28 U.S.C. 1254(1).

STATUTE AND REGULATION INVOLVED

Section 201(h) of the Controlled Substances Act, 21

ULS.C. 811th), and 28 C.F.R. 0.100(b) are set out in

Appendix A to this brief.

(1)

STATEMENT

Section 201(h) of the Controlled Substances Act, 21

U.S.C. 811th), provides the Attorney General with a

streamlined procedure for temporarily listing a drug as

a schedule I controlled substance when he finds that the

action is “necessary to avoid an imminent hazard to the

publie safety.” On October 15, 1987, the Attorney Gen-

eral’s delegate, the Administartor of the Drug Enforce-

ment Administration (DEA), used that authority to list

4-methylaminorex—a stimulant known in street vernacu-

lar as “Euphoria’’—temporarily as a schedule I controlled

substance pending proceedings for permanent listing.

While the temporary listing was in effect, petitioners

Danie! and Lyrissa Touby were arrested and charged

under the Controlled Substances Act with conspiring to

manufacture and knowingly manufacturing 4-methy!-

aminorex. Petitioners do not contend that Euphoria can-

not be listed as a schedule I controlled substance, and

since their arrest the drug has been permanently listed

as such. They challenge their convictions solely on the

theory that the Controlled Substances Act’s temporary

listing provisions unconstitutionally delegate legislative

power to the Executive Branch and, alternatively, that

the Attorney General unlawfully delegated his authority

under the statute to the Administrator of the DEA.

A. The Controlled Substances Act

1. In 1970, Congress enacted the Comprehensive Drug

Abuse Prevention and Control Act, Pub. L. No. 91-513,

84 Stat. 1236. Title II of that enactment, known as the

Controlled Substances Act (CSA), regulates the importa-

tion, manufacture, distribution, possession, and improper

use of substances that have a detrimental effect on public

health and welfare. See CSA § 101, 21 U.S.C. 801. It

establishes five schedules of controlled substances, includes

a list of substances initially placed on each schedule, and

contemplates the periodic reevaluation of the initial lists

and the addition of other substances to the schedules. See

CSA § 202, 21 U.S.C. 812. Once a substance is placed on

one of the schedules, manufacturers, distributors, and

dispensers of the substance must comply with various

regulatory requirements. See CSA §§ 301-310, 21 U.S.C.

821-830. Unauthorized possession of the substance with

intent to distribute it is a criminal offense. CSA § 401(a),

21 U.S.C. 841 (a).'

Section 201(a)} of the Act, 21 U.S.C. 811(a), grants

the Attorney General authority to add substances to the

schedules of controlled substances through a rulemaking

on the record pursuant to provisions of the Administra-

tive Procedure Act, 5 U.S.C. 553(¢c), 556, 557. Section

201(b) requires the Attorney General to receive the rec-

ommendation of the Secretary of Health and Human Serv-

ices (HHS) before initiating such a rulemaking respect-

ing a substance proposed for scheduling as a controlled

substance. 21 U.S.C. 811(b). The Secretary’s recom-

mendations are controlling as to scientific and medical

matters, and a substance cannot be placed on the sched-

ules if the Secretary recommends against listing it. See-

tion 201(c) identifies eight factors that the Attorney

General and the Secretary of HHS must consider in mak-

ing their determinations whether a substance should be

listed on a controlled substance schedule. 21 U.S.C.

811(c).?

1 Petitioners focus exclusively on how the five schedules affect the

gradation of criminal penalties applicable to illegal possession or dis-

tribution of controlled substances. Pet. Br. 3. Certain of the regu-

latory requirements of Sections 301-310 also apply differently to the

five schedules.

2 Section 201(c) requires consideration of the following factors

relating to the substance under consideration:

(1) Its actual or relative potential for abuse.

(2) Scientific evidence of its pharmacological effect, if known.

(3) The state of current scientific knowledge regarding the

drug or other substance.

(4) Its history and current pattern of abuse.

Section 202(b) of the Act identifies the specific cri-

teria for adding a substance to each of the schedules.

With exceptions not pertinent here, that provision 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.”

21 U.S.C. 812(b). The findings required to add a sub-

stance to schedule I are as follows:

(A) The drug or other substance has a high

potential for abuse.

(B) The drug or other substance has no cur-

rently accepted medical use in treatment in the

United States.

the drug or other substance under medical super-

vision.

CSA § 202(b) (1), 21 U.S.C. 812(b) (1). Thus, to add a

substance to schedule I, the Attorney General must deter-

mine through a rulemaking that the substance meets

those three criteria in light of the eight factors identified

in Section 201(c), 21 U.S.C. 811(¢). The scheduling of

a substance under Sections 201(a) and 202(b) is sub-

ject to judicial review in a court of appeals upon petition

by any “aggrieved” person. See CSA § 507, 21 U.S.C.

877.°

(5) The scope, duration, and significance of abuse.

(6) What, if any, risk there is to the public health.

(7) Its psychic or physiological dependence liability.

(8) Whether the substance is an immediate precursor of a sub-

stance already controlled under this subchapter.

21 U.S.C. 811(c).

’ Aggrieved persons would include manufacturers, distributors,

and dispensers subject to the regulatory restrictions of Sections 301

through 310. That class includes petitioners and others who propose

to engage in those activities without complying with the regulatory

restrictions.

2. In 1984, Congress enacted the Comprehensive Crime

Control Act, which amended the Controlled Substances

Act in various respects. See Controlled Substances Pen-

alties Amendments Act of 1984, Pub. L. No. 98-473, Tit.

II, ch. V, 98 Stat. 2068. Among the amendments, Con-

gress added a new subsection, Section 201(h), to the

Controlled Substances Act. That new subsection, codi-

fied at 21 U.S.C. 811(h), establishes an expedited pro-

cedure for temporarily listing a schedule I substance

when the Attorney General finds that such expedition “is

necessary to avoid an imminent hazard to the public

safety.” Section 201(h) “is designed to allow the Attor-

ney General to respond quickly to protect the public from

drugs of abuse that appear in the illicit traffic too rap-

idly to be effectively handled under the lengthy routine

control procedures.” S. Rep. No. 225, 98th Cong., 1st

Sess. 264-265 (1983).

Section 201(h)(3) directs the Attorney General to

make the “imminent hazard” determination based on

three factors: (1) the drug’s history and current pat-

tern of abuse; (2) the scope, duration, and significance

of abuse; and (3) the risk to the public health, giving

specific consideration to “actual abuse, diversion from

legitimate channels, and clandestine importation, manu-

facture, or distribution.” 21 U.S.C. 811(h) (3) (incor-

porating 21 U.S.C. 811(¢) (4), (5) and (6)). Section

201(h), however, does not dispense with the requirement

that a drug listed on schedule I have the characteristics

of a schedule I controlled substance. Hence, to list a sub-

stance temporarily on schedule I, the Attorney General

must not only make the Section 201(h) “imminent haz-

ard” determination that justifies expedited rulemaking;

in accordance with Section 202(b)(1), the substance

must also exhibit a high potential for abuse, it must have

no currently accepted medical use, and there must be a

lack of accepted safety for its use under medical super-

vision. 21 U.S.C. 812(b) (1).4

4 Accordingly, we disagree with petitioners’ statements (Br. 5-6,

14 n.9) that Section 202(h) requires only an “imminent hazard”

Before issuing an order listing a substance of a tem-

porary basis under Section 201(h), the Attorney General

must publish a notice of proposed listing in the Federal!

the Secretary of HHS. CSA § 201(h)(1)(A) and (B),

(h) (4), 21 U.S.C. 811(h)(1)(A) and (B), (h) (4).

The Attorney General must then wait 30 days after the

Federal Register notice and the HHS transmittal before

issuing the order. In deciding whether to list a substance

following this 30-day period, the Attorney General must

take into account any comments submitted by the Secre-

tary of HHS, but the prior approval of the Secretary is

not required, as would be the case for a permanent list-

ing. CSA § 201(h) (4), 21 U.S.C. 811(h) (4); compare

CSA § 201(b), 21 U.S.C. 811(b).

A Section 201(h) temporary listing expires at the end

of one year except that, if the Attorney General has in-

stituted rulemaking proceedings for the permanent list-

ing of the substance under Section 201(a), the Attorney

General may extend the temporary listing for up to six

months. CSA § 201(h) (2), 21 U.S.C. 811th)(2). In

any event, the temporary listing expires upon the com-

pletion of permanent rulemaking respecting the listing

of the substance. CSA § 201(h) (5), 21 U.S.C. 811(h)

(5). Subsection 201(h) (6) provides that the Attorney

General’s order temporarily listing a drug as a schedule

I substance “is not subject to judicial review.” 21 U.S.C.

811(h) (6). This provision postpones the special statu-

determination to list a substance in schedule I through expedited

rulemaking. As the court of appeals stated, Section 202(b) (1)’s

three schedule I criteria are “independent of the factors which sec-

tion [201(h)] requires the Attorney General to consider in exercis-

ing the designated temporary scheduling power.” J.A. 38. The

Attorney General’s determination that the drug poses an “imminent

hazard,”’ however, will generally satisfy the first criterion, while his

determination that there is no FDA exemption or approval in effect

for the drug, see 21 U.S.C. 811(h) (1), will satisfy the second and

third criteria. See Grinspoon v. DEA, 828 F.2d 881, 889 (1st Cir.

1987).

tory review mechanism set forth in Section 507—-which,

as we have explained, provides “aggrieved parties” with

judicial review in the appropriate court of appeals—

until the conclusion of permanent rulemaking procedures.

See CSA § 507, 21 U.S.C. 877."

3. Congress has provided, through Section 4(c) of the

Act of Sept. 6, 1966, ch. 31, 80 Stat. 612, that the Attor-

ney General “may from time to time make such provi-

sions as he considers appropriate authorizing the per-

formance by any other officer, employee, or agency of the

Department of Justice of any function of the Attorney

General.” 28 U.S.C. 510. In addition, Section 501(a) of

the Controlled Substances Act provides that the “Attor-

ney General may delegate any of his functions under

[the control and enforcement subchapter of the Act] to

any officer cr employee of the Department of Justice.”

21 U.S.C. 871(a).

In 1973, the Attorney General delegated the perform-

ance of his duties under the Controlled Substances Act,

including the scheduling of drugs, to the Administrator

of the DEA. 38 Fed. Reg. 18,380. See 28 C.F.R. 0.100

(b) (1986). That delegation was amended in 1987 to

clarify that it included the authority to schedule sub-

stances on a temporary basis under the expedited pro-

cedures of Section 201(h). 52 Fed. Reg. 24,447. See 28

C.F.R. 0.100(b).°

5 For the reasons discussed below, at pp. 33-36, Section 201 (h) (6)

does not preclude a court from determining whether a desig-

nated drug is properly listed as a schedule I substance in the

course of a criminal enforcement proceeding. Accordingly, we dis-

agree with petitioners’ contrary characterizations of the statute.

See Pet. Br. 5, 26-28.

®The Attorney General’s 1987 subdelegation was issued in re-

sponse to a court of appeals decision holding that the 1973 subdele-

gation to the Administrator did not encompass the later-enacted

authority conferred by Section 201(h). See United States v. Spain,

825 F.2d 1426 (10th Cir. 1987).

B. The Temporary Listing Of Euphoria As A Schedule I

Controlled Substance

1. On August, 13, 1987, the Administrator of the DEA

proposed the temporary listing of 4-methylaminorex

(formally known as (+) cis-4, 5-dihydro-2-amino-4-

methyl-5-phenyl-2-oxazolamine) as a schedule I controlled

substance. 52 Fed. Reg. 30,174." The Administrator ob-

served that the drug “is a new substance that is clande-

stinely produced, that is distributed in illicit traffic, and

that produces stimulant effects,” and therefore “is cer-

tainly the type of drug which Congress intended to be

considered for emergency scheduling.” /bid. Citing vari-

ous studies, the Administrator also noted that 4-methy]l-

aminorex’s pharmacological profile resembles that of am-

phetamine; that in high doses it produces “seizure activity

in the brain and associated convulsions, depression, res-

piratory failure, and death”; and that the DEA was not

aware of any commercial manufacturers or suppliers of

the drug or of any approved therapeutic use. Jd. at

30,175.

The Administrator made the necessary findings for

listing under Sections 201(h) of the Controlled Sub-

stances Act. He considered the history, pattern, and sig-

nificance of abuse, and the risk the drug posed to public

safety. 52 Fed. Reg. 30,174. See CSA § 201(h) (3), 21

U.S.C. 811(h) (3). He also identified the characteristics

necessary to qualify the substance for schedule I listing,

referring to “the potent stimulant and toxic actions of

the substance, and the lack of accepted medical use or

established safety for the use of 4-methylaminorex.” 52

Fed. Reg. at 30,174. See CSA § 202(b) (1), 21 U.S.C.

™The (+) prefix indicates that the listed substance is actually a

mixture of two optical isomers. Under the Controlled Substances

Act’s definitions, the listing of 4-methylaminorex includes the sub-

stance’s individual optical isomers. See CSA § 102(14), 21 U.S.C.

802(14); 21 C.F.R. 1308.02(c) and 1308.11(f). In addition to its

street name and formal chemical name, 4-methylaminorex is also

identified in pharmacology studies as “U4Euh,” “ICE,” and “McN-

822.”

812(b) (1). Based on a consideration of the factors re-

quired by Section 201(h) (3), as well as the finding

that the drug qualified as a schedule I controlled sub-

stance under Section 202(b) (1), the Administrator con-

cluded that listing 4-methylaminorex in schedule I, at

least on a temporary basis, was “necessary to avoid an

imminent hazard to the public safety.” 52 Fed. Reg.

30,175. Pursuant to Section 201(h) (4), the Administra-

tor notified the Assistance Secretary of Health and Hu-

man Services of the proposed scheduling. Ibid.

2. On October 15, 1987, the Administrator published

an order temporarily listing 4-methylaminorex as a

schedule I controlled substance, effective on that date.

52 Fed. Reg. 38,225. In response to the notice of intent

to schedule the drug, the Food and Drug Administration

(FDA) of HHS had advised the DEA that it had no

objections to the schedule I listing of the substance. /bid.

No comments were received from any other interested

parties. Jbid. Based on the information discussed in the

August 13 notice of proposed listing, the Administrator

stated his finding that the temporary listing of the drug

as a schedule I controlled substance was necessary to

avoid an imminent hazard to the public safety. Jd. at

38,225-38,226. The notice specifically warned that any

unauthorized activity respecting the drug was henceforth

unlawful and subject to criminal penalties. /bid.

3. On October 13, 1988, the Administrator extended

the duration of the temporary listing for an additional

six months, through April 15, 1989, or until completion

of rulemaking proceedings to schedule the drug on a per-

manent basis, whichever occurred first. 53 Fed. Reg.

40,061. The next day, he issued a notice of intent to

schedule the Crug permanently. 53 Fed. Reg. 40,391.

On April 13, 1989, 4-methylaminorex was permanently

8 That decision was based, in part, on a recommendation by the

DEA’s Drue Control Section. See 53 Fed. Reg. 40,391. We have

reprinted that recommendation, which is part of the administrative

record, as an appendix to this brief. See App. B, infra.

listed as a schedule I controlled substance after the com-

pletion of rulemaking under Section 201(a). 54 Fed.

Reg. 14,799.

C. The Facts And Proceedings In This Case

1. On January 5, 1989, police officers in Wanaque,

New Jersey, arrested petitioners after they purchased «

television set with a counterfeit cashier’s check. A search

incident to the arrest found petitioners to be in posses-

sion of marijuana and drug paraphernalia. Based on

further investigation, a warrant was obtained to search

petitioner’s home for counterfeiting materials and drugs.

When DEA agents executed the warrant on January 6,

1989, they discovered a fully operational drug laboratory

in petitioners’ bedroom. Among the items seized were

papers containing the formula for manufacturing 4-

methylaminorex. Also seized were mixtures that, upon

testing, were found to contain the drug.® J.A. 19-21

49-50.

2. On January 11, 1989, a grand jury in the United

States District Court for the District of New Jersey re-

turned a two-count indictment charging petitioners with

unlawful manufacture of a schedule I controlled sub-

stance and conspiracy to manufacture that substance,

in violation of the Controlled Substances Act. See CSA

$$ 401l/a), 406, 21 U.S.C. 841(a), 846. At the time of

the alleged offenses, the Administrator of the DEA had

temporarily listed 4-methylaminorex as a_ schedule I

ecntrolled substance pursuant to Section 201(h), but he

had not completed the rulemaking for permanent listing

of the substance. J.A. 2, 28.

®In September 1988, Daniel Touby had purchased cyanogen bro-

mide from the Eastman Kodak Company. In October 1988, Lyrissa

Touby had obtained sodium acetate, sodium carbonate, potassium

carbonate, and norephedrine hydrochloride from a chemical sup-

plier. Expert testimony established that those chemicals are used

to make 4-methylaminorex. J.A. 49.

aan

Petitioners challenged the constitutionality of Section

201(h) in a pretrial motion to dismiss the indictment.

They contended that Congress had impermissibly dele-

gated to the Attorney General legislative power to crim-

inalize activity concerning 4-methylaminorex by author-

izing him to list the drug as a schedule I controlled

substance on a temporary basis. Petitioners also con-

tended that the Attorney General could not in any event

delegate his temporary listing authority to the Adiminis-

trator. The district court rejected both challenges in an

opinion dated March 17, 1989. J.A. 11-19. After a jury

trial, petitioners were convicted as charged in the in-

dictment. Daniel Touby was sentenced to 42 months’ im-

prisonment and Lyrissa Touby was sentenced to 27

months’ imprisonment, each term of imprisonment to be

followed by three years’ supervised release. J.A. 28.

3. The court of appeals affirmed petitioners’ convic-

tions, rejecting their challenges to the temporary sched-

uling procedure. J.A. 27-54. The court first held that

Congress had not impermissibly delegated its legislative

power to the Attorney General by authorizing him to

list drugs as controlled substances on a _ temporary

basis.” J.A. 33-43. It noted that this Court has sus-

tained broad assignments of authority to the Executive

Branch, as long as the relevant congressional enactment

lays down an “intelligible principle” directing the re-

sponsible official’s actions. /d. at 34-35, quoting Mis-

tretta Vv. United States, 488 U.S. 261, 372 (1989), and

J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394,

409 (1928).

The court rejected petitioners’ contention that a more

stringent nondelegation standard should be applied in

10 The Ninth Circuit reached the same result in United States vy.

Emerson, 846 F.2d 541, 545-546 (1988). The Tenth Circuit has

held, however, that Section 201(h) is an unconstitutional delega-

tion of legislative power. United States v. Widdowson, 916 F.2d

587, 589-591 (1990).

this case because Section 201(h) permits the Attorney

General to “create” crimes. J.A. 35-38. It explained

that this Court has not in fact applied a more stringent

test in considering the validity of statutes authorizing

administrative regulation of conduct giving rise to crim-

inal liability, J.A. 36-37, and that Section 201(h) does

not authorize the Attorney General to define primary

criminal conduct, because Congress itself has proscribed

the manufacture and possession of controlled substances,

while the Attorney General “merely designat{es] the

drugs or substances which fall within Congress’ general

description.” J.A. 37-38.

Applying this Court’s “intelligible principle” test, the

court of appeals concluded that Section 201(h) provides

the Attorney General with sufficient guidance for mak-

ing the “imminent hazard” finding required for tem-

porary listing of substances. J.A. 39-40. The court ob-

served that the statutory standards provide at least as

much guidance as the “public interest, convenience, in-

terest, or necessity” standard that was found to be suffi-

cient to guide the Federal Communications Commission

in National Broadcasting Co, v. United States, 319 U.S.

190, 225-227 (1943), or the “excessive profits” standard

for renegotiation of wartime contracts that was sus-

tained in Lichter v. United States, 334 U.S. 742, 783-

787 (1948). J.A. 39-40.

Moreover, the court of appeals found that the consti-

tutionality of Section 201(h) was reinforced by the lim-

ited scope of the temporary scheduling, which “can be

viewed as preliminary to and in aid of the permanent

scheduling authority as set forth in section [201(a)],”

J.A. 40, and by the practical necessities of the situation

confronting Congress. The court observed that Congress

had found the permanent listing procedures inadequate

to address the situation of “designer drugs” that are

similar to listed substances but contain slight variations,

and it noted that the purpose of the temporary listing

authority is to “avoid an imminent hazard to the public

safety,” 21 U.S.C. 811(h) (1), by imposing an “ ‘emer-

gency control’” during the interim between identifica-

tion of a drug that presents a major abuse problem and

the permar-nt scheduling of the substance—a_ period

during which “ ‘enforcement actions against traffickers

[were] severely limited and a serious health problem

may arise.” J.A. 39, 40 (quoting S. Rep. No. 225,

supra, at 264, 265).

Finally, the court rejected petitioners’ contention that

Section 201(h)(6)’s limitation on judicial review of

an order listing a drug on a temporary basis renders

Section 201(h) an unconstitutional delegation of legis-

lative power. J.A. 41-43. The court pointed out that

Congress has foreclosed judicial review in a variety of

other administrative contexts. J.A. 42-43. It also stated

that Section 201(h) (6) does not necessarily bar judi-

cial review of the temporary listing in a criminal prose-

cution, if the defendant claims that the listing of the

particular drug violated the standards in Section 201(h).

J.A. 33 n.2, 42-43. But in this case, the court noted,

petitioners “do not contend that Euphoria cannot be

scheduled as a Schedule | narcotic or that the temporary

scheduling of the substance did not meet the standards

set forth in 21 U.S.C. $ 811th).” J.A. 33.

The court of appeals next held that Section 4(c) of

the Act of September 6, 1966, 28 U.S.C. 510, empowered

the Attorney General to delegate his temporary listing

authority to the Administrator of the DEA." J.A. 43-

46. The court cited the general rule that in the absence

of a contrary expression by Congress, powers conferred

on an Executive Branch officer may be delegated to a

subordinate official, J.A. 45, and it found no support for

the proposition that Congress intended sub silentio to

create an exception to the Attorney General’s broad

delegation authority under Section 4/¢) in the context

The Tenth Circuit has reached the opposite conclusion, hold-

ing that the Section 201(h) authority is nondelegable. United

States v. Widdowson, 916 F.2d at 591-593.

of the listing of controlled substances on a temporary

basis pursuant to Section 201(h)."*? The court further

found that the Attorney General did, in fact, delegate

his Section 201(h) authority to the Administrator. J.A.

46-48.

Judge Hutchinson dissented. J.A. 54-66. He agreed

with the majority that the record did not suggest that

the Attorney General acted arbitrarily or otherwise im-

properly in temporarily listing Euphoria as a controlled

substance under Section 201(h) or that Euphoria is not

a danger to the public safety. J.A. 55. Judge Hutchin-

son also accepted the majority’s analysis of the statutory

background and the nature of the problem to which Sec-

tion 201th) is addressed, J.A. 55, and he concluded that

Section 201(h)’s purpose of avoiding “‘an imminent

hazard to the public safety’ is in and of itself an in-

telligible principle under the teachings of the Supreme

Court.” J.A. 58, citing National Broadcasting Co. v.

United States, 319 U.S. at 225-226, and Lichter v. United

States, 334 U.S. at 783-787. But Judge Hutchinson

nevertheless believed that Section 201(h) unconstitu-

tionally delegates Congress’s legislative power because,

in his view, it authorizes the Attorney General to define

primary criminal conduct and therefore should be sub-

ject to a more stringent non-delegation test. J.A. 58-61."

1? Because the court found adequate subdelegation authority under

Section 4(c), it did not reach the question whether Section 501 (a)

of the Controlled Substances Act, 21 U.S.C. 871(a), provided an

independent basis for such delegation. J.A. 46 n.4.

13 Because he believed that Section 201(h) is unconstitutional,

Judge Hutchinson did not reach the question of the statutory

validity of the Attorney General’s delegation of his temporary

listing authority to the Administrator of the DEA. J.A. 55 n.1.

SUMMARY OF ARGUMENT

1. The Constitution divides and diffuses governmental

power among the “three coequal Branches.” Mistretta v.

United States, 488 U.S. 361, 380 (1989). This Court’s

requirement that Congress provide an intelligible prin-

ciple to guide an executive officer’s administration of a

statute maintains that separation of powers by assuring

that no “legislative power”—as the Constitution uses

that term—is delegated to the Executive Branch. Once

it is determined, through application of that standard,

that Congress has conferred only executive functions, the

delegation inquiry is at an end. Separation of powers

principles do not prevent Congress from selecting the

Attorney General, rather than another Executive Branch

official, to perform the executive function. Indeed, Con-

gress had sound policy reasons for vesting the Attorney

General with the Section 201 (h) temporary listing au-

thority, and the potential for abuse that petitioners posit

simply does not exist.

Petitioners are also mistaken in arguing that Section

201(h) is an unconstitutional delegation because Con-

gress has provided inadequate opportunity for judicial

oversight of the Attorney General’s temporary listing

decisions. A temporary listing of a substance is simply

the first step in the administrative process for determ-

ining whether the substance should be permanently

listed. As petitioners recognize. Section 507 of the Con-

trolled Substances Act specifically authorizes judicial re-

view if the substance is permanently listed. 21 U.S.C.

877. Petitioners object, however, that Section 201(h) (6)

precludes Section 507 review during the interim period

of up to 18 months while the permanent rule is under

consideration and the temporary listing is in effect.

There is no merit to that objection. Individuals who

insist on manufacturing and selling hazardous substances

during that interim period may challenge the Attorney

General’s listing decision in a criminal enforcement pro-

ceeding. The government is not required to stay its

hand until the courts have an opportunity to determine

whether government is justified in bringing an enforce-

ment action. See Ewing v. Mytinger & Casselberry, Inc.,

359 U.S. 594, 598-599 (1950).

2. Petitioners also argue that the Attorney General

lacks siatutory authority to delegate his Section 201 (h)

responsibilities to the Administrator of the DEA. Con-

gress, however, has authorized that subdelegation under

two separate statutes. First, Congress has given the

Attorney General broad authority to delegate the per-

formance of “any” of his functions to another officer,

employee, or agency of the Department of Justice. 28

U.S.C. 510. Second, Congress specifically provided in

Section 501(a) of the Controlled Substances Act that the

Attorney General ‘‘may delegate any of his functions”

under the control and enforcement provisions of that

Act to any officer or employee of the Department. 21

U.S.C. 871(a). There is no indication in the Controlled

Substances Act that Congress intended to except the

Attorney General’s responsibilities under Section 201

(h) from those delegation provisions. The Attorney Gen-

eral accordingly had ample statutory authority to dele-

gate his Section 201(h) responsibilities to the Adminis-

trator of the DEA.

ARGUMENT

I. SECTION 201(h) DOES NOT VIOLATE THE CON-

STITUTION’S REQUIREMENT THAT “ALL LEGIS-

LATIVE POWERS” SHALL BE VESTED IN CON-

GRESS

The Constitution provides that “[a]ll legislative Powers

herein granted shall be vested in a Congress of the United

States.” U.S. Const. Art. I, § 1. Petitioners contend that

Congress has violated that requirement by creating sched-

ules of controlled substances, providing the initial con-

tents of those schedules, and then authorizing the Attor-

ney General to add—temporarily, pending formal rule-

making—other substances that he has identified as posing

“an imminent hazard to the public safety.” § 201(h), 21

U.S.C. 811(h). Although petitioners contend that Con-

gress’s action is “unprecedented” (Br. 15), “strikes at

the heart of the system of checks and balances that guar-

antee the rule of law” (Br. 15) and undermines individ-

ual liberty “at its core” (Br. 18), they also recognize that

this Court’s precedents narrowly restrict the scope of

their challenge.

Petitioners accept that “the separation-of-powers prin-

ciple, and the nondelegation doctrine in particular, do not

prevent Congress from obtaining the assistance of its

coordinate Branches.” Mistretta v. United States, 488

U.S. 361, 372 (1989). They also accept (Br. 12-13, 21)

the principle “now enshrined in our jurisprudence” that:

“In determining what [Congress] may do in seek-

ing assistance from another branch, the extent and

character of that assistance must be fixed according

to common sense and the inherent necessities of the

government coordination.”

Mistretta, 488 U.S. at 372, quoting J.W. Hampton, Jr.,

& Co. v. United States, 276 U.S. 394, 406 (1928).

Petitioners acknowledge that “Congress has often

granted executive departments and agencies the author-

ity to promulgate regulations that govern private con-

duct, and some of the resulting regulations are enforce-

able through criminal prosecutions.” Br. 19. See, e.g.,

Yakus v. United States, 321 U.S. 414 (1944); United

States v. Grimaud, 220 U.S. 506 (1911). And they ac-

knowledge, more indirectiy (Br. 13 & n.7, 22 n.14, 24),

the firmly established rule that

's]o long as Congress “shall lay down by legislative

act an intelligible principle to which the person or

body authorized to [exercise the delegated author-

ity] is directed to conform, such legislative action

is not a forbidden delegation of legislative power.”

Mistretta, 488 U.S. at 372, quoting J.W. Hampton, Jr.,

& Co., 276 U.S. at 409."

Petitioners do not claim that Congress has failed to set

forth an “intelligible principle” to guide the Attorney

General's listing of substances on a temporary or perma-

nent basis. Indeed, they expressly disclaim any challenge

to “the specificity of the substantive standards that Con-

gress established to govern the exercise of delegated

powers.” Br. 13, 21. And, as the court of appeals stated,

14 Petitioners also acknowledge (Br. 22 n.14), as recited in

Mistretta, that this Court’s application of the “intelligible prin-

ciple” test has resulted in rejection of virtually every challenge

to legislation on the ground that it unconstitutionally delegated

legislative power. 488 U.S. at 373-374. See, e.g., Lichter v. United

States, 334 U.S. 742 (1948) (authority to determine excess profits) ;

American Power & Light Co. v. SEC, 329 U.S. 90 (1946) (author-

ity to prevent unfair or inequitable distribution of voting power

among security holders); Yakus v. United States, 321 U.S. 414

(1944) (authority to fix commodity prices at fair and equitable

levels) ; FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944) (author-

ity to determine just and reasonable rates) National Broadcasting

Co. Vv. United States, 319 U.S. 190 (1943) (authority to regulate

broadcast licensing as public interest, convenience, or necessity

require). The only two exceptions, Panama Refining Co. v. Ryan,

293 U.S. 388 (1935), and A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935), involved a statute in which Congress

“failed to articulate any policy or standard that would serve to con-

fine the discretion of the authorities to whom Congress had dele-

gated power.” Mistretta, 488 U.S. at 373 n.7.

petitioners “do not contend that Euphoria cannot be sched-

uled as a Schedule I narcotic or that the temporary

scheduling of the substance did not meet the standards

set forth in 21 U.S.C. § 811(h).” J.A. 33.

Ultimately, petitioners seek an exception to this Court’s

settled delegation principles based on two points: the At-

torney General (rather than some other executive official)

exercises the authority conferred under the statute (Br.

14-23); and the statute’s temporary listing provisions do

not provide for pre-enforcement review (Br. 24-35). As

we explain below, Congress’s conferral of authority in

this case is plainly constitutional under this Court’s set-

tled standards and is not, as petitioners suggest, “un-

precedented” (Br. 15, 19, 30). The factors that petition-

ers claim distinguish this case—the identity of the par-

ticular executive officer who exercises the delegated au-

thority, and the timing of judicial review-—do not call for

a different analysis or dictate a different result.

A. Section 201(h) Satisfies Established Delegation

Standards

Petitioners face a difficult task in demonstrating that

a duly enacted congressional statute is facially unconsti-

tutional. See, e.g., Mistretta, 488 U.S. at 384; United

States v. Salerno, 481 U.S. 739, 745 (1987); Rostker v.

Goldberg, 453 U.S. 57, 64 (1981). That task is especially

difficult in this case because, as the lower courts held and

petitioners concede, Congress’s delegation of authority to

the Attorney General under Section 201(h) amply satis-

fies the “intelligible principle” test that this Court has

consistently employed to determine the constitutionality

of challenged delegations. See Skinner v. Mid-America

Pipeline Co., 490 U.S. 212, 218-219, 224 (1989);

Mistretta, 488 U.S. at 372-374.

1. Sections 201(h) and 202(b) set forth “intelligible”

-—and indeed quite precise—standards to channel the At-

torney General’s discretion in identifying substances for

temporary listing as schedule I controlled substances.

First, the substance must present “an imminent hazard

to the public safety,’ CSA §201(h)(1), 21 U.S.C.

811th) (1), as determined after consideration of the sub-

stance’s history and current pattern of abuse, the scope,

duration and significance of abuse, the risk to the public

health, the diversion from legitimate channels, and

clandestine importation, manufacture, or distribution,

CSA § 261/(¢) (4)-(6), (h) (3), 21 U.S.C. 811/¢) (4)-(6),

811(h) (3). Second, to qualify for listing on schedule I, a

substance must have “a high potential for abuse,” it must

have “no currently accepted medical use in treatment in

the United States,” and there must be “a lack of accepted

safety for use of the drug or other substance under medi-

cal supervision.” CSA § 202(b)(1), 21 U.S.C. 812

(b) (1)."° There is no question in this case that these

standards meet the “intelligible principle” test for up-

holding Congress’s delegation of authority.

2. While petitioners state that they do “not challenge

the specificity of the substantive standards that Congress

established to govern the exercise of [the Section 201 (h) ]

delegated powers,”’ Pet. Br. 13, 21, they nevertheless

claim that the Attorney General may act with “unfet-

15 A proposed, but not enacted, version of Section 201(h) would

have authorized the Attorney General to list a substance on any

schedule for which it qualified, but would have given the Sec-

retary of HHS authority to veto the expedited scheduling. See

S. 1762, 98th Cong., Ist Sess. (1983), as reported in S. Rep. No.

225, supra, at 616-617. The enacted version, however, authorized

the Attorney General to list temporarily only schedule I sub-

stances and eliminated the Secretary’s veto power. The House Com-

mittee on the Judiciary explained:

In examining the particular substances for which the sched-

uling action was most necessary, the Subcommittee concluded

that limiting the authority only to substances that have no

currently accepted medical use in treatment addressed both

the legitimate concerns of those in the health care industry

and the principal danger to the public health.

H.R. Rep. No. 835, 98th Cong., 2d Sess. 10 (1984). In short, the

health care industry’s concerns were accommodated, and the need

for the Secretary’s veto power were eliminated, by limiting the

temporary scheduling authority to schedule I substances. See note

4, supra.

tered discretion” in selecting “any drug’ for emergency

schedule I listing under Section 201(h), Pet. Br. 14, 24.

Petitioners overlook the significance of the requirements

that a substance listed on an emergency basis must both

pose an “imminent hazard” and meet the three criteria

for schedule I listing set in out Section 202(b!(1). See

Pet. Br. 14 n.9. For example, one of the key distinctions

drawn by Section 202'b) between schedule I substances

and substances qualifying for inclusion on the other sched-

ules is the lack of a “currently accepted medical use in

treatmeni in the United States.” 21 U.S.C. 812(b) (1)

(B).° Each of the other schedules includes substances

that have a currently accepted medical use. See 21 U.S.C.

$12(bi (2) (Bi, (3)(B!, (4)(B), and (5)(B). Thus,

petitioners’ suggestion (Br. 24) that the Attorney General

“could add a substance as innocuous as aspirin to Sched-

ule I” is not only farfetched, but is precluded by the

statute."®

3. Petitioners also suggest (Br. 15-16, 30-31) that

when Congress delegates authority to the Executive

Branch to identify specific conduct that may result in

criminal prosecution there is a need for “heightened con-

stitutional concerns.” This Court, however, has never re-

jected application of the “intelligible principle” test in

the criminal context. The relevant inquiry remains

whether Congress has set forth standards sufficiently

16Other passages of petitioners’ brief seem to sugyest that

Section 201(h) was intended to regulate only fundamentally new

drugs. See Br. 6 n.3, 14 n.9. Congress recognized, however, that

a drug (such as naturally occurring peyote) may exist long before

there emerges a need—resulting from the drug’s abuse—to control

its distribution. Hence, there is no requirement that the drug be

“newly designed or created” (Pet. Br. 6 n.3). Instead, to qualify

for temporary listing under Section 201(h), the substance must

not already be listed on any of the schedules, the substance must

not be subject to an exemption or approval under the FDA’s new-

drug provisions of 21 U.S.C. 355, and the temporary listing of the

substance must be “necessary to avoid an imminent hazard to the

public safety.”” CSA § 201(h) (1), 21 U.S.C. 811 (h) (1).

specific to guide the executive official’s exercise of discre-

tion. Cf. Skinner, 490 U.S. at 222-223 (rejecting the

“application of a different and stricter nondelegation doc-

trine in cases where Congress delegates discretionary au-

thority to the Executive under its taxing power’’)."”

For example, in Yakus v. United States, 321 U.S. 414

(1944), this Court upheld a delegation of authority to fix

maximum commodity prices and rents even though viola-

tion of the regulations was a criminal offense. There was

no suggestion in that case that a more stringent standard

of delegation applied. Similarly, in J.W. Hampton, Jr.,

& Co., 276 U.S. at 406, the Court observed that Congress

frequently secures the “the exact effect” of legislation by

vesting discretion in executive officers to make regulations

“directing the details of its execution, even to the extent

of providing for penalizing a breach of such regulations.”

276 U.S. at 406. Indeed, the instances are legion where

Congress has authorized Executive Branch agencies to

prescribe regulations or to make administrative determi-

nations that may result in the imposition of criminal

punishment.'* This Court has repeatedly upheld such au-

17 Petitioners rely on statements in Mistretta and Fahey v. Mal-

lonee, 332 U.S. 245, 250 (1947), that characterize the statute at

issue in Schechter Poultry and Panama Refining as delegating

power to make “federal crimes of acts that never had been such

before” and to create “new crimes in uncharted fields.” Fahey,

332 U.S. at 249, 250; see Mistretta, 488 U.S. at 373 n.7. The point

of those statements was not that a different constitutional standard

applies to regulations with penal consequences, but rather that the

delegations at issue in Schechter Poultry and Panama Refining were

unconstitutional because “Congress had failed to articulate any

policy or standard that would serve to confine the discretion of the

authorities to whom Congress had delegated power.” Mistretta, 488

U.S. at 373 n.7 (emphasis added).

18 See, e.g., 7 U.S.C. 87b(a) (11), 87¢ (Department of Agricul-

ture grain regulations); 7 U.S.C. 2024(b) (Department of Agri-

culture food stamp regulations); 15 U.S.C. 78ff (violation of Se-

curities and Exchange Commission regulations); 15 U.S.C. 2070

(violation of Consumer Product Safety Commission regulations) ;

15 U.S.C. 2615(b) (violation of Environmental] Protection Agency

thorizations without regard to their penal consequences.

See, e.g., Avent Vv. United States, 266 U.S. 127 (1924);

McKinley v. United States, 249 U.S. 397 (1919) ; United

States v. Grimaud, 220 U.S. 506 (1911); Monongahela

Bridge Co. v. United States, 216 U.S. 177 (1910) ; Union

Kollock, 165 U.S. 526 (1897)."

4. Congress’s prescription of “intelligible principles” is

sufficient, by itself, to assure that Section 201(h) does

not delegate “legislative power’—in the sense the Con-

stitution uses that term—to the Executive Branch. See

Skinner, 490 U.S. at 218-219. Indeed, prior to the devel-

toxic substance control regulations); 15 U.S.C. 3414(c) (2) (viola-

tion of Federal Energy Regulatory Commission natural gas regu-

lations) ; 16 U.S.C. 773g (violation of International Pacific Halibut

Commission regulations); 19 U.S.C. 1436(c), 1459(g) (violation

of Presidential regulations pertaining to international investment) ;

29 U.S.C. 666(e) (violation of Occupational Safety and Health

Administration regulations) ; 30 U.S.C. 1268 (violation of Depart-

ment of Interior orders); 31 U.S.C. 5322 (violation of Depart-

ment of Treasury reguiations respecting monetary instruments

transactions) ; 33 U.S.C. 1319, 1415 (violation of EPA water quality

regulations); 42 U.S.C. 4910(a) (violation of EPA noise control

regulations); 42 U.S.C. 6928(d) (violation of EPA solid waste

management regulations); 42 U.S.C. 6992d (violation of EPA

medical waste regulations); 42 U.S.C. 8432 (violation of Depart-

ment of Energy regulations); 42 U.S.C. 9603 (violation of EPA

hazardous substance reporting requirements); 43 U.S.C. 1350

(violation of Department of Interior regulations respecting outer

continental shelf leasing) ; 46 U.S.C. 3718(b) (violation of Depart-

ment of the Treasury regulations respecting inspection of vessels) :

49 U.S.C. 521(b) (6), 11903 (violation of Interstate Commerce Com-

mission requirements).

1 Even if delegations involving the creation of novel criminal

liability warranted closer scrutiny, that scrutiny wou!d not be

necessary in this case. As the court of appeals observed, the At-

torney General has had authority since 1970 to identify substances

for permanent placement on schedule I, and the courts have re-

peatedly upheld that authority. J.A. 37. Congress, not the Attorney

General, has prescribed the elements of the criminal offenses involv-

ing such substances and has defined the penalties. Thus, the scope

of the Attorney General’s delegated authority is quite narrow.

opment of that test, this Court repeatedly stated that

statutes conditioning the application of the law on exec-

utive determinations do not delegate lawmaking author-

ity at all; rather, they confer “an authority or discre-

tion as to its execution, to be exercised under and in

pursuance of the law.” J.W. Hampton, Jr., & Co., 276

U.S. at 407, and Field v. Clark, 143 U.S. 649, 693-694

(1892), quoting Cincinnati, W. & Z. R.R. v. Commission-

ers of Clinton County, 1 Ohio St. 77, 88-89 (1852) .7°

20 For example, in United States v. Grimaud, supra, the Court

observed that the Secretary of Agriculture “did not legislate” when

he promulgated criminally enforceable grazing regulations pursuant

to the laws establishing national forests because he “did not go

outside of the circle of that which the act itself had affirmatively

required to be done, or treated as unlawful if done.” 229 U.S. at

518. Rather, the Secretary was fulfilling the executive function “to

administer the law and carry the statute into effect.” Jbid.

Similarly, in Monongahela Bridge Co. v. United States, supra, the

Court rejected an unlawful delegation claim in a criminal prosecu-

tion based on the Secretary of War’s administrative determination

that a bridge constituted an obstruction to navigation under Section

18 of the Rivers and Harbors Appropriation Act of 1899, ch. 425,

36 Stat. 1151. 216 U.S. at 192. Justice Harlan stated for the Court

that the Secretary “could not be said to exercise strictly legislative

or judicial power” where he simply determines, pursuant to con-

gressional directive, “some facts or some state of things upon which

the enforcement of [a statute] may depend.” Jd. at 193.

The Court reached the same result under similar facts in Union

Bridge Co. v. United States, 204 U.S. at 386 (“In performing that

duty the Secretary of War will only execute the clearly expressed

will of Congress, and will not, in any true sense, exert legislative or

judicial power.”). See also, e.g., Field v. Clark, 143 U.S. at 694

(“The legislature cannot delegate its power to make a law; but it

can make a law to delegate a power to determine some fact or state

of things upon which the law makes, or intends to make, its own

action depend.”); In re Kollock, 165 U.S. at 533 (“The regulation

was in execution of, or supplementary to, but not in conflict with,

the law itself, and was specifically authorized thereby in effectuation

of the legislation which created the offense.”); Cargo of the Brig

Aurora V. United States, 11 U.S. (7 Cranch) 382, 388 (1813) (‘we

can see no sufficient reason, why the legislature should not exercise

its discretion * * * either expressly or conditionally, as their judg-

ment should direct’’).

The Court's “intelligible principle” standard has fur-

ther refined that reasoning by recognizing that if Con-

gress has failed to articulate intelligible principles to

guide the executive officer’s exercise of discretion under

the statute, there may be a de facto delegation of legisla-

tive power. See Mistretta, 488 U.S. at 418-419 (Scalia,

J., dissenting). Once it is determined, however, that the

executive officer is executing Congress’s will pursuant to

ascertainable legislative guidelines, that is the end of the

delegation inquiry. In cases such as this one, where Con-

gress has set forth specific standards to direct the Attor-

ney General's exercise of discretion, there is no delegation

of legislative power at all. See Mistretta, 488 U.S. at 379.

B. The Constitution Does Not Prohibit Congress From

Authorizing The Attorney General To Exercise The

Authority Conferred By Section 201(h)

Petitioners argue that satisfaction of this Court’s “in-

telligible principle” standard is not enough in this case.

They contend (Br. 14-23) that Section 201:h) violates

delegation principles by committing the temporary sched-

uling decision to the Attorney General rather than to

some other executive official, such as the Secretary of

HHS. Petitioners assert (Br. 14) that Congress’s choice

results in an “unconstitutional aggregation of power’’ be-

cause it gives the Attorney General “unilateral authority

to create crimes and prosecute violators.”” This novel ar-

rument misconceives both the nature of the Constitution’s

separation of powers principle and the specific responsi-

bilities of the Attorney General.

1. This Court “consistently has given voice to, and has

reaffirmed, the central judgment of the Framers of the

Constitution that, within our political scheme, the separa-

tion of governmental powers into three coordinate

Branches is essential to the preservation of liberty.”

Mistretta, 488 U.S. at 380. But the concept of separation

of powers always focuses on the distribution of powers

among the “three coequal Branches.” Jbid. What is for-

hidden are “provisions of law that either accrete to a

single Branch powers more appropriately diffused among

separate Branches or that undermine the authority and

independence of one or another coordinate Branch.” 7/d.

at 382.

This Court has never suggested that separation o*

powers principles govern the aggregation of powers

within subdivisions of the Executive Branch. Indeed, the

Constitution provides no premise for such an approach

because it vests all executive power in the President, U.S.

Const. Art. II, $1, and requires him to see that the

laws are “faithfully executed,” U.S. Const. Art. II, § 3.

From a constitutional perspective, the Executive Branch’s

authority to administer statutes through the promulgation

of regulations is necessarily and always aggregated with

the Executive Branch’s authority to enforce the law

through penal and other legislatively prescribed means.

The promulgation of regulations and the prosecution of

offenses are simply different aspects of the Executive's

function.

2. Petitioners recognize that there is nothing novel in

Congress authorizing Executive Branch officials to pro-

scribe dangerous substances upon determination that the

substances pose an “imminent hazard to the public safety”

and to enforce those proscriptions through criminal pen-

alties. CSA § 201(h'!, 21 U.S.C. 811(h).*' They concede

that “the need for flexibility and expertise may well jus-

tify delegation of the temporary scheduling power to some

21 Compare, e.g., 15 U.S.C. 2605(d) (authorizing the Administra-

tor of the Environmental Protection Agency to impose immediate

restrictions on the manufacture of toxic substances that pose an

unreasonable risk of serious or widespread injury); 21 U.S.C.

355(e) (authorizing the Secretary of Health and Human Services

to suspend approval of new drugs upon finding an imminent hazard

to public health health) ; 29 U.S.C. 655(c) (authorizing the Secre-

tary of Labor to promuigate emergency temporary occupational

safety standards); 30 U.S.C. 811(b) (authorizing the Secretary of

Labor to promulgate emergency temporary mine safety standards).