Touby v. United States @ DrugPolicyCases.com

The Controlled Substances Act authorizes the Attorney General, upon compliance with specified procedures, to add new drugs to five "schedules" of controlled substances, the manufacture, possession, and distribution of which the Act regulates or prohibits. Because compliance with the Act's procedures resulted in lengthy delays, drug traffickers were able to develop and market "designer drugs" -- which have pharmacological effects similar to, but chemical compositions slightly different from, scheduled substances -- long before the Government was able to schedule them and initiate prosecutions. To combat this problem, Congress added § 201(h) to the Act, creating an expedited procedure by which the Attorney General can schedule a substance on a temporary basis when doing so is "necessary to avoid an imminent hazard to the public safety," and providing that a temporary scheduling order is not subject to judicial review. The Attorney General promulgated regulations delegating, inter alia, his temporary scheduling power to the Drug Enforcement Administration (DEA), which subsequently temporarily designated the designer drug "Euphoria" as a schedule I controlled substance. While that temporary order was in effect, petitioners were indicted for manufacturing and conspiring to manufacture Euphoria. The District Court denied their motion to dismiss, rejecting their contentions that § 201(h) unconstitutionally delegates legislative power to the Attorney General, and that the Attorney General improperly delegated his temporary scheduling authority to the DEA. The Court of Appeals affirmed petitioners' subsequent convictions.

1. Section 201(h) does not unconstitutionally delegate legislative power to the Attorney General.

(a) The nondelegation doctrine does not prevent Congress from seeking assistance from a coordinate Branch, so long as it lays down an "intelligible principle" to which the person or body authorized to act is directed to conform. See, e. g., J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 72 L. Ed. 624, 48 S. Ct. 348. Section 201(h)'s "imminent hazard to public safety" standard is concededly such a principle. [...]

(b) Section 201(h) does not violate the principle of separation of powers by concentrating too much power in the Attorney General, who also wields the power to prosecute crimes. [...]

(c) Section 201(h) does not violate the nondelegation doctrine by barring judicial review. Since § 507 of the Act plainly authorizes judicial review of a permanent scheduling order, the effect of the § 201(h) bar is merely to postpone legal challenges to a scheduling order until the administrative process has run its course. Moreover, the § 201(h) bar does not preclude an individual facing criminal charges from bringing a challenge to a temporary scheduling order as a defense to prosecution. In these circumstances, the nondelegation doctrine does not require in addition an opportunity for preenforcement review of administrative determinations.

2. The Attorney General did not improperly delegate his temporary scheduling power to the DEA. Section 501(a) of the Act -- which authorizes delegation of "any of [the Attorney General's] functions" under the Act -- permits delegation unless a specific limitation appears elsewhere in the Act. See United States v. Giordano, 416 U.S. 505, 512-514, 40 L. Ed. 2d 341, 94 S. Ct. 1820. No such limitation appears with regard to the temporary scheduling power.

Petitioners [...] argue that the temporary scheduling statute is unconstitutional because it bars judicial review. [...]

We reject petitioners' argument. Although § 201(h)(6), 21 U. S. C. § 811(h)(6), states that a temporary scheduling order "is not subject to judicial review," another section of the Act plainly authorizes judicial review of a permanent scheduling order. See § 507, 21 U. S. C. § 877. Thus, the effect of § 201(h)(6) is merely to postpone legal challenges to a scheduling order for up to 18 months, until the administrative process has run its course. This is consistent with Congress' express desire to permit the Government to respond quickly to the appearance in the market of dangerous new drugs.

I agree that the separation of powers doctrine relates only to the allocation of power between the Branches, not the allocation of power within a single Branch. But this conclusion by no means suggests that the Constitution as a whole is indifferent to how permissibly delegated powers are distributed within the Executive Branch. In particular, the Due Process Clause limits the extent to which prosecutorial and other functions may be combined in a single actor. See, e. g., Morrissey v. Brewer, 408 U.S. 471, 485-487, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972).

In 1970, Congress enacted the Controlled Substances Act (Act), 84 Stat. 1242, as amended, 21 U. S. C. § 801 et seq. The Act establishes five categories or "schedules" of controlled substances, the manufacture, possession, and distribution of which the Act regulates or prohibits. Violations involving schedule I substances carry the most severe penalties, as these substances are believed to pose the most serious threat to public safety. Relevant here, § 201(a) of the Act authorizes the Attorney General to add or remove substances, or to move a substance from one schedule to another. § 201(a), 21 U. S. C. § 811(a).

When adding a substance to a schedule, the Attorney General must follow specified procedures. First, the Attorney General must request a scientific and medical evaluation from the Secretary of Health and Human Services (HHS), together with a recommendation as to whether the substance should be controlled. A substance cannot be scheduled if the Secretary recommends against it. § 201(b), 21 U. S. C. § 811(b). Second, the Attorney General must consider eight factors with respect to the substance, including its potential for abuse, scientific evidence of its pharmacological effect, its psychic or physiological dependence liability, and whether the substance is an immediate precursor of a substance already controlled. § 201(c), 21 U. S. C. § 811(c). Third, the Attorney General must comply with the notice-and-hearing provisions of the Administrative Procedure Act (APA), 5 U. S. C. §§ 551-559, which permit comment by interested parties. § 201(a), 21 U. S. C. § 811(a). In addition, the Act permits any aggrieved person to challenge the scheduling of a substance by the Attorney General in a court of appeals. § 507, 21 U. S. C. § 877.

It takes time to comply with these procedural requirements. From the time when law enforcement officials identify a dangerous new drug, it typically takes 6 to 12 months to add it to one of the schedules. S. Rep. No. 98-225, p. 264 (1984). Drug traffickers were able to take advantage of this time gap by designing drugs that were similar in pharmacological effect to scheduled substances but differed slightly in chemical composition, so that existing schedules did not apply to them. These "designer drugs" were developed and widely marketed long before the Government was able to schedule them and initiate prosecutions. See ibid.

To combat the "designer drug" problem, Congress in 1984 amended the Act to create an expedited procedure by which the Attorney General can schedule a substance on a temporary basis when doing so is "necessary to avoid an imminent hazard to the public safety." § 201(h), 21 U. S. C. § 811(h). Temporary scheduling under § 201(h) allows the Attorney General to bypass, for a limited time, several of the requirements for permanent scheduling. [...]

Because it has fewer procedural requirements, temporary scheduling enables the Government to respond more quickly to the threat posed by dangerous new drugs. A temporary scheduling order can be issued 30 days after a new drug is identified, and the order remains valid for one year. During this 1-year period, the Attorney General presumably will initiate the permanent scheduling process, in which case the temporary scheduling order remains valid for an additional six months. § 201(h)(2), 21 U. S. C. § 811(h)(2).

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