90-6282 -- CONCUR v. UNITED STATES

No. 90-6282

TOUBY, et ux, PETITIONERS v.UNITED STATES

[May 20, 1991]

Justice Marshall, with whom Justice Blackmunjoins, concurring.

I join the Court's opinion but write separately to empha- size two points underlying my vote. The first is my conclu- sion that the opportunity of a defendant to challenge the sub- stance of a temporary scheduling order in the course of a criminal prosecution is essential to the result in this case. Section 811(h)(6) of Title 21 U. S. C. expressly prohibits di- rect review of a temporary scheduling order in the Court of Appeals but says nothing about judicial review of such an order in other settings. Under established rules of construc- tion, we must presume from Congress' silence on the matter that it did not intend to foreclose review in the enforcement context. See Estep v. United States, 327 U.S. 114, 120-122 (1946). See generally McNary v. Haitian Refugee Center, Inc., 498 U. S. ---, --- (1991); Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141 (1967). An additional con- sideration reinforces this principle here. As the Court notes, judicial review perfects a delegated-lawmaking scheme by assuring that the exercise of such power remains within statutory bounds. See, e. g., Skinner v. Mid-Amer- ica Pipeline Co., 490 U.S. 212, 218-219 (1989). Because of the severe impact of criminal laws on individual liberty, I be- lieve that an opportunity to challenge a delegated lawmaker's compliance with congressional directives is a constitutional necessity when administrative standards are enforced by criminal law. Cf. United States v. Mendoza-Lopez, 481 U.S. 828, 837-839 (1987); Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Di- alectic, 66 Harv. L. Rev. 1362, 1379-1383 (1953). We must therefore read the Controlled Substances Act as preserving judicial review of a temporary scheduling order in the course of a criminal prosecution in order to save the Act's delegation of lawmaking power from unconstitutionality. Cf. Webster v. Doe, 486 U.S. 592, 603-604 (1988).

The second point that I wish to emphasize is my under- standing of the breadth of the Court's constitutional holding. I agree that the separation of powers doctrine relates only to the allocation of power between the Branches, not the allo- cation 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 distrib- uted 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 (1972). Petitioners raise no due process challenge in this case, and I do not understand anything in today's decision as detract- ing from the teachings of our due process jurisprudence generally.