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Subject: 90-6282 -- OPINION, TOUBY v. UNITED STATES




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-6282



DANIEL TOUBY, et ux, PETITIONERS v.
UNITED STATES


on writ of certiorari to the united states court of appeals for the third
circuit

[May 20, 1991]



    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 MDRV 201(h) of the Controlled Substances
Act, 98 Stat. 2071, 21 U. S. C. MDRV 811(h).  We consider whether MDRV
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. MDRV 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, MDRV 201(a) of the Act authorizes the Attorney
General to add or remove substances, or to move a substance from one
schedule to another.  MDRV 201(a), 21 U. S. C. MDRV 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.  MDRV 201(b), 21 U. S. C. MDRV 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.  MDRV 201(c), 21 U. S. C. MDRV 811(c).  Third, the Attorney
General must comply with the notice-and-hearing provisions of the
Administrative Procedure Act, 5 U. S. C. 15 551-559, which permit comment
by interested parties.  MDRV 201(a), 21 U. S. C. MDRV 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.  MDRV 507, 21 U.
S. C. MDRV 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 differing slightly in chemical
composition, so that existing schedules did not apply to them.  These
"designer drugs" were developed and widely marketed long before the
Government was able to schedule them and initiate prosecutions.  See ibid.
To combat the "designer drug" problem, Congress in 1984 amended the Act to
create an expedited procedure by which the Attorney General can schedule a
substance on a temporary basis when doing so is "necessary to avoid an
imminent hazard to the public safety."  MDRV 201(h), 21 U. S. C. MDRV
811(h).  Temporary scheduling under MDRV 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.  MDRV 201(h)(3), 21 U. S. C.
MDRV 811(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.  MDRV 201(h)(1), 21 U. S. C.
MDRV 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 MDRV 201(h)(4), 21 U. S. C. MDRV 811(h)(4).  Finally, MDRV
201(h)(6), 21 U. S. C. MDRV 811(h)(6), provides that an order to schedule a
substance temporarily "is not subject to judicial review."
    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.  MDRV 201(h)(2), 21 U. S.
C. MDRV 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 MDRV 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 MDRV 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. --- (1991), and now affirm.
II
    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,
MDRV 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 MDRV 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 regulate 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 MDRV 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 au thorizes another Branch to
promulgate regulations that contemplate criminal sanctions.  They contend
that regulations of this sort pose a heightened risk to individual liberty
and that Congress must therefore provide more specific guidance.  Our cases
are not entirely clear as to whether or not more specific guidance is in
fact required.  Compare Fahey v. Mallonee, 332 U. S. 245, 249-250 (1947),
cited in Mistretta, supra, at 373, n. 7, with Yakus, supra, at 423427, and
United States v. Grimaud, 220 U. S. 506, 518, 521 (1911).  We need not
resolve the issue today.  We conclude that MDRV 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, MDRV 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."  MDRV 201(h)(1), 21 U. S.
C. MDRV 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."  15 201(c)(4)-(6), 201(h)(3), 21 U. S. C.

15 811(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."  MDRV 201(h)(3), 21 U. S. C. MDRV 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."  15 201(h)(1), 201(h)(4), 21 U. S. C. 15 811(h)(1),
811(h)(4).
    In addition to satisfying the numerous requirements of MDRV 201(h), the
Attorney General must satisfy the requirements of MDRV 202(b), 21 U. S. C.
MDRV 812(b).  This section identifies the criteria for adding a substance
to each of the five schedules.  As the United States acknowledges in its
brief, MDRV 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."  MDRV 202(b), 21 U. S. C. MDRV
812(b).  Thus, apart from the "imminent hazard" determination required by
MDRV 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."  MDRV 202(b)(1), 21 U. S. C. MDRV 812(b)(1).
    It is clear that in 15 201(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 Branches, see Mistretta, supra, 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, MDRV 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," MDRV 201(h)(6), the Act purportedly violates the
nondelegation doctrine.
    We reject petitioners' argument.  Although MDRV 201(h)(6), 21 U. S. C.
MDRV 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 MDRV 507, 21 U. S. C. MDRV
877.  Thus, the effect of MDRV 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 MDRV
201(h)(6) does not preclude an individual facing criminal charges from
bringing a challenge to a temporary scheduling order as a defense to
prosecution.  See Brief for United States 34-36.  This is sufficient to
permit a court to " `ascertain whether the will of Congress has been
obeyed.' "  Skinner, supra, at 218, quoting Yakus, supra, at 426.  Under
these circumstances, the nondelegation doctrine does not require, in
addition, an opportunity for pre-enforcement 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."
MDRV 501(a), 21 U. S. C. MDRV 871(a).  We have interpreted MDRV 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 MDRV 201(h).
    The judgment of the Court of Appeals is
Affirmed.


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