Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been pre- pared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.

Syllabus

et ux. v. UNITED STATES

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

No. 90-6282. Argued April 17, 1991 -- Decided May 20, 1991

The Controlled Substances Act authorizes the Attorney General, upon compliance with specified procedures, to add new drugs to five "sched- ules" of controlled substances, the manufacture, possession, and distri- bution 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 pharma- cological 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, Con- gress 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 regula- tions 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 sub- stance. While that temporary order was in effect, petitioners were in- dicted 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 Attor- ney General, and that the Attorney General improperly delegated his temporary scheduling authority to the DEA. The Court of Appeals af- firmed petitioners' subsequent convictions.

1. Section 201(h) does not unconstitutionally delegate legislative power to the Attorney General. Pp. 4-8.

(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. Section 201(h)'s "imminent hazard to public safety" standard is concededly such a principle. Moreover, even if more specific guidance is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions, 201(h) passes muster. Although it features fewer procedural requirements than the permanent scheduling statute, the section meaningfully con- strains the Attorney General by placing multiple specific restrictions on his discretion to define criminal conduct. He must also satisfy 202(b)'s requirements for adding substances to schedules. Pp. 4-6.

(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. The separation-of-powers principle focuses on the distribution of powers among the three coequal Branches of Government, see Mistretta v. United States, 488 U.S. 361, 382, and does not speak to the manner in which Congress parcels out au- thority within the Executive Branch. Pp. 6-7.

(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 ad- ministrative process has run its course. Moreover, the 201(h) bar does not preclude an individual facing criminal charges from bringing a chal- lenge to a temporary scheduling order as a defense to prosecution. In these circumstances, the nondelegation doctrine does not require in addi- tion an opportunity for pre-enforcement review of administrative deter- minations. Pp. 7-8.

2. The Attorney General did not improperly delegate his temporary scheduling power to the DEA. Section 501(a) of the Act -- which author- izes 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. No such limitation appears with regard to the temporary scheduling power. P. 8.

909 F. 2d 759, affirmed.

O'Connor, J., delivered the opinion for a unanimous Court. Mar- shall, J., filed a concurring opinion, in which Blackmun, J., joined.